Court File and Parties
Court File No.: Guelph 605/13 Date: 2014-08-14 Ontario Court of Justice
Between: Her Majesty the Queen — and — Michael Sona
Before: Justice G.F. Hearn
Heard on: June 2, 3, 4, 5, and 9, 2014
Reasons for Judgment released on: August 14, 2014
Counsel:
- Croft Michaelson / Ruth McGuirl, for the Crown
- Norman Boxall, for the accused Michael Sona
Judgment
Introduction
1During the latter part of the 2011 federal election campaign and more specifically between April 30, 2011 and May 2, 2011 certain events took place within the campaign headquarters of the Conservative Party candidate in the City of Guelph. These events included the placing of numerous automated phone calls to identified non-supporters of the Conservative Party falsely indicating that their polling stations had been changed to another location.
2The purpose of the calls is alleged to have been to prevent or endeavour to prevent an elector from voting at the election to be held on May 2, 2011. The Crown alleges that Michael Sona, the accused, was the individual responsible for the creation and placing of such calls. In the alternative, the Crown now alleges that if Mr. Sona was not solely responsible, the court should find that Mr. Sona was one of a group of two or more individuals who initiated and carried out this ill-conceived plan and that Mr. Sona played an "instrumental role" in the plan making him a party to the offence.
3Mr. Sona has pled not guilty to the offence alleged under the provisions of the Canada Elections Act and his trial commenced on June 2, 2014. In support of its theory, the Crown has called numerous witnesses. There have been a number of exhibits filed as evidence and as well there is before the court an extensive agreed statement of facts. The defence has elected to call no evidence.
4The Crown's evidence was completed over a four day period and on June 9 thorough and thoughtful submissions were made by both counsel. The matter was then adjourned to today's date for judgment.
Evidence of the Crown
a) Admitted Facts
5As noted, a statement of admitted facts has been filed as Exhibit 1 on this trial. The statement sets out various admissions which include a good deal of technical evidence regarding the transmission of the subject calls. The statement acknowledges the following:
i) At all relevant times Michael Sona was the communication director for the Conservative candidate in the riding of Guelph during the 2011 election campaign leading up to and including the day of the election on May 2, 2011. Others involved in the campaign were Kenneth Morgan, the campaign manager, Andrew Prescott, the deputy campaign manager and the individual in charge of information technology, John White in charge of "Get Out the Vote" (GOTV) activities and Christopher Crawford who was in charge of canvassing. The court, during the trial, heard from all of these individuals save and except Kenneth Morgan.
ii) On May 2, 2011 between 10:03 a.m. and 10:14 a.m. telephone calls were made to 6,738 telephone numbers primarily in the City of Guelph. The calls consisted of a recorded bilingual message purported to be sent on behalf of Elections Canada. An audio copy of the message has been marked as Exhibit 2. The message indicated that due to a projected increase in voter turnout the polling station for the individual or individuals at the numbers called had been changed to another location in the City of Guelph. The message notes that location to be the Old Quebec Street Mall at 55 Wyndham Street North and provides a "hotline" telephone number. As well the message contains an apology for any inconvenience the change may cause. It is acknowledged that the message was false, that there had been no change in polling locations and the message was not from Elections Canada. It is admitted the effect of the false telephone message was that a number of prospective voters telephoned the staff at the Old Quebec Street Mall polling station to inquire as to the change. As well some people actually attended that particular polling station only to be advised that the information was incorrect and they were redirected to their correct stations. It is estimated that 150 to 200 electors presented themselves at the false location as a result of the calls and upon learning the message was false some of those individuals simply "tore up" their voter information cards and walked away. An example of an elderly woman who had listened to the call, believed its contents and decided for very personal reasons not to vote at all is also set out in the admitted facts. It is not possible to determine exactly how many recipients of the false message were unable to vote or decided not to vote as a consequence of receiving the false telephone message.
iii) It is agreed that the people who received the false message noted a particular telephone number on their call displays. That number was registered to a Virgin mobile telephone. The subscriber registered to that particular telephone number was noted to be "Pierre Poutine, Separatist Avenue, Jolliet, Quebec". It is acknowledged that there is no such address nor is there any such person. The mobile phone was purchased for $45.30 at a Future Shop location situated on Stone Road, in the City of Guelph on April 30, 2011 at 7:04 p.m.
The phone was thereafter activated on April 30, 2011 at 8:48 p.m. The phone was a "pay as you go phone" meaning that customers can simply purchase time from a retail outlet or on line and add it to the phone. A prepaid "vanilla" VISA card was used by the on-line subscriber when the phone was activated.
iv) It is acknowledged that on April 30, 2011 at 8:58 p.m., 9:02 p.m. and 9:20 p.m. outgoing calls were made from this particular phone to a telephone number for RackNine, an Alberta company that provides automated telephone calling services. These calls were made from the telephone through a telephone tower situated at 530 York Road, Guelph, Ontario which was the closest telephone tower to the Conservative Party campaign office situated at 965 York Road, Guelph.
On May 1, 2011 from 11:16 p.m. until 11:37 p.m. seven phone calls were made from the cell phone to another number for RackNine again through the same telephone tower. After May 2, 2011 no further outgoing calls were made from that particular cell phone and all incoming calls thereafter went to voicemail.
v) The admitted facts sets out the mechanics of how the calls were made through an account set up with RackNine to which the operator of RackNine had assigned the name "Client 93". RackNine is a company acknowledged to have provided automated telephone calling services to the National Conservative Party together with a number of local Conservative Party campaigns during the 2011 election. The statement sets out how the automated computer system operated by RackNine provided such telephone calling services. The owner/operator of RackNine is Matt Meier from whom the court ultimately heard. Mr. Meier received telephone calls from the prepaid cell phone number on April 30, 2011 at 8:58 p.m. and 9:02 p.m. There was then an exchange of e-mails between that caller and Mr. Meier at 9:07 p.m. on that date. Those e-mails have been marked as exhibits at trial. It is acknowledged that the calls to Mr. Meier on April 30, 2011 were made through the same telephone on York Road in the City of Guelph.
The statement sets out the creation of "Client 93" and the fact that "Client 93" only accessed the RackNine website on May 1 and 2, 2011 through two internet protocol addresses one of which was associated with a proxy server which is a website which serves as an intermediary between two computers and allows the user to hide their actual location. The other internet protocol address from which the access to the RackNine website was implemented was an address assigned to a modem that had been installed in the Conservative Party campaign headquarters in Guelph. It is acknowledged that "Client 93" logged into the RackNine system from the proxy server on May 1 at 2:37 a.m., 2:41 a.m., 2:43 a.m. and 1:20 p.m. "Client 93" also logged into that system from the address associated with the Conservative candidate's headquarters on May 2 at 3:25 a.m., 9:08 a.m., 10:03 a.m., 1:00 p.m. and 6:54 p.m.
vi) The false message sent to the electors in Guelph was uploaded from the prepaid cell phone to the account of "Client 93" on the RackNine system on May 1, 2011 at 11:32 p.m. That particular call was again routed through the telephone tower closest to the Conservative Party candidate's campaign office. On May 2 between 3:57 a.m. and 3:59 a.m. "Client 93" uploaded to the RackNine system via its website a list of telephone numbers to be called. This list contained 6,737 telephone numbers, took five seconds to upload and occurred through a computer using the internet protocol address associated with the Conservative Party campaign office in Guelph.
Particulars as to the false message were finalized by "Client 93" on the RackNine system at 9:08 a.m. on May 2. Those instructions directed the system to make the calls to the calling list that had been previously uploaded. At 10:03 a.m. on May 2 a test call containing the false message was directed to the number associated with the prepaid cell phone and "Client 93" then directed the system to make the automated calls. Those instructions came from the IP address associated with the campaign office. The system then made 7,676 calls to 6,738 phone numbers between 10:03 a.m. and 10:14 a.m. on May 2. Three thousand and nine-three of those calls resulted in the full message being completed. The total cost for the services was $162.10.
vii) "Client 93" created a second false message purporting to be from the Guelph Liberal candidate. That message was uploaded via telephone to the "Client 93" account on the RackNine system at 11:39 p.m. on May 1. That call also came from the prepaid cellphone routed through the telephone tower closest to the Conservative campaign headquarters. An audio copy of that message has been filed. That message was to be sent out to the same list of numbers to which the false polling station message had been sent and was to go out between 4:00 a.m. and 6:45 a.m. on May 2. That particular message however was never sent.
viii) It is agreed and confirmed by Andrew Prescott that he also had an account with RackNine and had had that account since October 2010. That account was noted to be "Client 45" and that particular client number also accessed the RackNine system from the campaign offices multiple times from April 30 to May 2. Those times included the following: April 30 at 5:46 p.m., 6:35 p.m., 7:54 p.m., 8:37 p.m., 9:09 p.m., 9:46 p.m.; May 1 at 3:08 p.m. and May 2 at 4:15 a.m., 10:51 a.m., 6:24 p.m., 6:49 p.m., 7:13 p.m. and 7:16 p.m. There is an acknowledgement that the RackNine records indicate the "Client 93" and "Client 45" accounts were accessed from the campaign internet protocol address on two occasions in close proximity to time. Specifically on May 2 the "Client 93" account was logged in at 3:25 a.m. and the user access part of the RackNine webpage at 4:12 a.m. "Client 45" then logged in at 4:15 a.m. On May 2 the accounts of both clients were accessed during the same session meaning that both accounts were logged in from the same computer from the same open RackNine browser window. "Client 93" was logged in at 6:54 p.m. then logged out and at 7:13 pm. "Client 45" was logged in, logging out at 7:16 p.m.
ix) The statement of facts sets out how the calls were paid for through the use of three prepaid VISA and Mastercard vanilla cards. This included payment for not only the cellphone associated with the calls, but also to RackNine for its services. The cards had been purchased at Shoppers Drug Mart locations in the City of Guelph and had been purchased on April 30, 2011 and May 1, 2011 at the times noted. Payments for the RackNine account were made thereafter by internet through Pay Pal from an account registered to "Pierre Jones, 54 Lajoie Nord, Joliette, Quebec" an address which did not exist. The phone number provided with respect to the Pay Pal account was that of the prepaid cellphone referred to. All contact with Pay Pal had been made using the same proxy server used by "Client 93" to interact with the RackNine system.
x) The admitted facts further set out how the various numbers were received from the Conservative Party's Constituency Information Management System (CIMS) which is a database that contains contact information for party supporters and non-supporters. The RackNine calling list was consistent with the CIMS non-supporter data that had been updated as recently as April 27, 2011. It is acknowledged that various members of the local Conservative campaign had access to this particular system. This included the accused who was authorized access as well as Kenneth Morgan, Andrew Prescott, John White and Christopher Crawford. There is no record of the accused accessing that database at any time. There is a record however of Christopher Crawford accessing that system 13 times between April 23 and May 2 and John White and Andrew Prescott exercising access to that system 10 times during that period. The times for those individuals accessing the system are noted. It appears as well that Kenneth Morgan exercised access on April 30 and on May 1. It is acknowledged that Andrew Prescott and John White both exported lists of telephone numbers on April 30 from that system, but those lists of telephone numbers exported contain less than 15% of the telephone numbers provided to RackNine by "Client 93". It is agreed there is no record of a file being exported from CIMS containing the telephone numbers ultimately provided to RackNine. However, it is acknowledged and became clear in the evidence that files containing telephone numbers could be exported from CIMS in the form of a "constituent report" which at that time did not leave a record of the numbers. Such "constituent reports" were generated by John White on April 30 on two occasions and by Kenneth Morgan and Andrew Prescott in March 2011. There is no indication that any member of the local campaign team other than John White generated such reports from April 1, 2011 to May 2, 2011.
It is specifically agreed that the exports of telephone numbers from CIMS by Andrew Prescott on April 30, 2011 at 17:20:34 and 17:30:53 and by John White on April 29, 2011 at 12:26:37 and 16:10:26 were not the sources of the telephone numbers uploaded to the account of Client 93 at RackNine on May 2, 2011 between 3:57 a.m. and 3:59 a.m.
b) Overview of Evidence of the Crown Relating to the Accused Leading up to April 30, 2011
(i) Evidence of Christopher Crawford
6As with other witnesses called by the Crown this witness was involved in the Conservative internship program in Ottawa in 2009. He had been somewhat active in politics while at university as was Mr. Sona and he met the accused in 2008 during a federal campaign election when both had worked for the Conservative candidate at the time in Guelph.
7After graduating he maintained contact with Mr. Sona and indicated they became "pretty good friends". He spoke of his involvement again not an active one during non-election years with the local riding association in Guelph and indicated his relationship with various individuals including Ken Morgan, John White and Andrew Prescott as well as others.
8He was the "canvass chair" for the local Conservative candidate in Guelph with respect to the May 2, 2011 federal election. He described his responsibilities as canvass chair and responsibilities of various other parties including Mr. Sona.
9Part of his responsibility as "canvass chair" was to make sure that canvassing was done by volunteers. He described this as an important part of the campaign. He described the "walk lists" that he was able to obtain through the Conservative Party's Constituency Information Management System (CIMS) which was a database to which he had access and which contained information for party supporter and non-supporters.
10This database also included other information with respect to individuals and was used to assist Mr. Crawford in arranging for the "walk sheet" for canvassing, to determine the areas to be canvassed and the individuals to be called upon. He described the database as being restrictive in terms of who could access it. He noted that he had access as did others and although Mr. Sona had access the admitted facts indicate that Mr. Sona never accessed CIMS during the election campaign. Mr. Crawford spoke of the ability of the database to generate phone numbers and lists and noted that phone numbers would be of assistance for canvassing on rainy days. He testified that he had never downloaded telephone numbers for any other purpose "not that I can recall".
11Mr. Crawford was directed to the CIMS activity log and confirmed his access to the CIMS database on a number of occasions from April 23, 2011 to May 2, 2011. He was also referred to "User Data Exports and explained why he had accessed the database on those occasions.
12Mr. Crawford described the office layout and had prepared a sketch. The layout included various cubicles or offices occupied by individuals within the campaign. He described the dividers between the various cubicles and when asked if there was much privacy indicated "not too much".
13Mr. Crawford described the relationship as he saw it between Mr. Sona and Mr. Morgan as "pretty close" as one was the campaign manager and the other the communications director. They would work closely together which was normal in a campaign.
14The witness testified one evening he was entering data from the "walk sheet" into CIMS when he overheard a conversation between Mr. Sona and Mr. Morgan. He initiated this part of his evidence by indicating that in any campaign you hear talk about American style politics.
15He stated he believed that Mr. Sona was talking to Mr. Morgan as they were the only other people in the office at the time. He heard Mr. Sona talk about suppressing voters and making sure they do not vote. Mr. Sona was talking about "how we might be able to win an election". Mr. Crawford initially described the conversation as very general, and volunteered again that he had worked several campaigns and sometimes "these type of conversations take place". People talk "off the cuff" and "no one thinks anything of it", they "sometimes just occur".
16Mr. Crawford was directed to the statement he had given to Elections Canada in order to refresh his memory. The statement was taken on March 6, 2012. After doing so as to the timing of this particular conversation, he stated "the best I can do" is state that the conversation took place sometime two weeks before the election.
17He also then recalled specifics of the conversation and indicated that Mr. Sona had also mentioned calling Liberal supporters late at night and making them mad as well as redirecting voters to the wrong location. He did not think anything of the conversation and in campaigns, as he put it, you "hear yammering on about different things and you don't think these things will actually happen. You give people the benefit of the doubt".
18The next day in an "off the cuff" conversation he said something along the lines to Mr. Sona that he would never engage in such activity or something to the effect that that is not an activity he would do. He then again was referred to the statement made to the investigator and then stated he had indicated to Mr. Sona the following day that he had overheard a conversation the previous evening involving American style tactics. He had stated at that time to Mr. Sona it is "not something we should do and elections should be won fairly and squarely". When asked if Mr. Sona responded to that comment, Mr. Crawford indicated "not really".
19Mr. Crawford confirmed that the weekend preceding the election he had been in the campaign office late in the evenings, but could not recall specifically how late. On election day he was a scruitineer. He described the duties of a scrutineer and talked about their flexibility in leaving polling locations during the course of the day.
20He had been designated to be a scrutineer and a poll captain at a polling station at a hotel but later on May 2, 2011 he had received a telephone call from Ken Morgan asking if he could switch locations with Mr. Sona.
21As a result, he travelled to the West End Rec Centre where Mr. Sona was serving as scrutineer and signed in at that location as a scrutineer at 7:07 p.m. He noted there were several polling stations at that particular location and although he signed in at 7:07 p.m. he may have arrived an hour before. Mr. Crawford denied the purchase of any cell phone or any prepaid credit cards. He also denied ever using the RackNine website. Further, he testified that he was familiar with the location of the Future Shop and the Shoppers Drug Mart in the Stone Road area and indicated, depending on traffic, it would be about a 10 to 15 minute drive to get to those locations.
22Paragraphs 11 and 36 of the agreed statement of facts indicate that the cell phone and the $75 Visa vanilla card were purchased on April 30, 2011 at 7:04 p.m. and 6:49 p.m. respectively. The witness was not questioned as to the distance from the campaign office to the Shoppers Drug Mart where two prepaid credit cards had been purchased one at 1:20 p.m. and one at 5:30 p.m. on May 1, 2011.
(ii) Evidence of Andrew Prescott
23Andrew Prescott provided his evidence pursuant to an immunity agreement. He is currently as an IT consultant in Calgary, but at the time of the federal general election in May 2011 was working in Guelph and had been actively involved with the federal Conservative Party for a number of years starting in the 2005—2006 federal election. He eventually became president of the local Conservative riding association and a campaign manager in a previous election.
24He acknowledged he considers Ken Morgan who was the campaign manager in the 2011 election as a friend who "understands politics the same way I do". He has known Michael Sona since the 2008 federal election and described Mr. Sona as an individual who "understands how politics works very well" and as a result they connected and also "understood one another".
25Mr. Prescott spent "a fair bit of time" attempting to convince Mr. Sona to work in Guelph during the federal campaign as he was a hard worker and "very good at what he did".
26He also described his relationships with Christopher Crawford and John White, both from his involvement in political matters.
27Mr. Prescott described his previous involvement with RackNine and knew it to be a service for making automated telephone calls. He in fact had been dealing with that service and Matt Meier at RackNine for some time prior to the election in connection with another campaign or campaigns in 2010. He described the benefits of using that particular service and the means by which that service was employed. He described the service as easy to use, inexpensive and "fairly intuitive once you spend a few minutes looking at it". He in fact had an existing account with RackNine and was known as Client #45.
28He spoke of his involvement specifically in the 2011 general election. He had acted as a campaign manager for a short period of time and then became "more or less in title only the deputy campaign manager".
29He described the layout of the office and drew a sketch. His duties and responsibilities seemed to include largely IT work. He set up the computers in the office and arranged for the telephone lines. He described the computers that were used together with his laptop.
30He described Mr. Sona as a director of communications and set out his responsibilities. Mr. Prescott acknowledged that during the campaign he had access to RackNine to send out calls and explained what that use was. Apparently it was to send out notification of events or to put out messages with respect to "get out the vote" particularly towards the end of the campaign. When asked who it was that decided whether a telephone campaign would go out, Mr. Prescott indicated it was usually a group decision, but ultimately the decision rested with Ken Morgan the campaign manager.
31He acknowledged he was primarily responsible for crafting the messages as he had been involved with sending out automated calls for "previous campaigns at various levels of government" and was familiar with the methodology for such messages.
32He was asked if during the campaign he had ever shown the RackNine website to others in the campaign. He indicated he had and he showed it "quite extensively" to various people. He could not state who specifically, but did mention initially that he showed it to most of the younger volunteers as there were a number of very keen volunteers who would likely at some point be campaign managers themselves. He then offered that this was also a "small side business venture" on his part as he wanted to get the message out that he had this capability so it would "drive future business".
33Mr. Prescott himself was absent from the campaign as a result of a holiday that had been previously scheduled from April 19 to April 28.
34He was asked if he recalled anyone asking questions about the service and then recalled "one particular conversation" in the warehouse portion of the campaign office. His recollection of that conversation was that he was talking to two individuals when the conversation turned to the capabilities of robo-calls. Mr. Prescott was talking to "two young staffers" and wanted to make sure they understood the capabilities of RackNine to "drum up future business opportunities".
35The conversation then turned to how the outbound calls were identified. Mr. Prescott had explained how a call display could be set up and at that point Mr. Sona who was also present expressed "a little bit of surprise" and said, "So let me understand this, you can make it appear to be coming from anywhere?" Mr. Prescott then made a point of telling the court he "very clearly" indicated to Mr. Sona apparently in order to "pre-empt any thought of using things for various purposes", that "everything could be traced" and even though a call display may show something different it is "still fully traceable".
36Although in the course of his evidence he had referred to robo-calls, he advised that at the time that was not a term and he had referred to the calls as "daemon dialler" which refers to an automated process that would go through a list and send out various calls.
37Mr. Prescott was shown the RackNine business records and acknowledged that he was the client identified a Client 45 and that the calls sent out through that service to Client 45 were "indeed my calls". He spoke of the various calls that had been sent which appeared to have legitimate purposes during the course of the federal election campaign as well as previous campaigns. He stated he had left his PIN number and the 800 number for RackNine with someone, he did not recall whom, while he had been on vacation. He did seem to recall that the candidate himself had called in a recording dealing with a campaign event.
38When he returned from vacation he became aware of telephone calls that seemed to be initiated from the "opposition". The calls, in Mr. Prescott's view, attacked the Conservative candidate on a particular issue and it seemed to him that some of the more progressive supporters were being deliberately targeted to try and supress their votes. He had been absent from the office when some of this occurred, but he had received one such call while he was in the office himself. He had heard about the other calls from "various individuals" including he "believed" Mr. Sona and Ken Morgan. He referred specifically to the call he received from a named individual on April 29 or 30 which he felt was totally inappropriate. He was of the view that the Conservative campaign had been the target of a "classic Liberal black op" to try and suppress "our voters". The phone number associated with that message was an out of service number, there was nothing identifying which candidate had paid for the call and it was, according to Mr. Prescott, "exactly the sort of thing" that you do if you wanted to try and suppress your opposition's vote. He shared this particular call with others and advised "people were absolutely livid".
39Mr. Prescott testified with respect to the contact he had had as Client 45 with RackNine. He gave specifics of the reasons for the calls made and the fact that there were telephone calls uploaded. He stated that the list of phone numbers would have been provided either by himself going into the CIMS system or alternatively he would have been provided a list by "someone like Chris Crawford who was our main CIMS guy".
40He himself had compiled a "do not call list" which was a list of telephone numbers for Conservative supporters who had asked not to be called and in order not to anger their supporters with any further extra phone calls. This list had been created and downloaded by himself.
41He was shown an e-mail directed to Ken Morgan and Michael Sona dated April 30 in which Mr. Prescott had provided a copy of Matt Meier's auto-signature and forwarded contact information for Mr. Meier. He was asked why he had sent that particular e-mail and advised that he had been asked for RackNine's contact information by Mr. Morgan so he provided it to him. Mr. Prescott stated he had provided similar information to Mr. Morgan previously on a "slip of paper" but Mr. Morgan indicated he had lost that slip so he asked for an e-mail to be sent so he would not misplace it. Mr. Prescott did not recall exactly when he had provided the slip of paper to Mr. Morgan. Mr. Morgan did not explain why he wanted the e-mail to be sent to himself and Mr. Sona nor apparently did Mr. Prescott ask. He never received such instructions from Mr. Sona directly.
42Paragraphs 33 and 34 of the admitted facts set out the particulars of the access to the RackNine website by Client 45, i.e. Andrew Prescott on April 30, May 1 and May 2, 2011.
43Mr. Prescott denied ever purchasing or acquiring a cell phone from the Future Shop on Stone Road on April 30, 2011. He did not know of anyone else who had acquired a phone around that date. He did testify he had seen a cell phone on Mr. Sona's desk and packaging for a pre-paid cell phone being the same model he had seen at a Future Shop "a couple of weeks prior". He is familiar with cell phones being sold from the Future Shop as he worked there and in fact the vacation that he took prior to the election was paid for by monies he saved as a result of working at Future Shop "for several previous Christmases". He noted the packaging in the garbage and pointed out the location of the garbage can where he had seen the packaging which appears to be in close proximity to Mr. Sona's office.
44He denied using a pre-paid Visa card or ever seeing any pre-paid gift cards in the office.
45He was taken through the various log-ins to his account with RackNine on April 30, 2011. He had no recollection as to why he would have made those log-ins and stated he did not specifically recall.
46He was asked as to his whereabouts the night before the election during the evening of May 1, 2011. He indicated he was "in and out of the office and all over the city", but did acknowledge that in the early morning hours of May 2, 2011 he would have been at the office. He could not recall when he might have arrived, but did indicate "for sure" he was "probably" at the office at 4:00 a.m. and remained there until "sun up". When asked if he was there from 4:00 a.m. onwards, he stated "I believe so". He could not recall who else was there, but there were a number of young people and he "believed" Mr. Sona was also there during that timeframe.
47The following exchange then took place with Crown counsel:
"Question: There's a log-in to your account at 2:15 a.m. Edmonton time or 4:15 a.m. Guelph time.
Answer: Okay.
Question: Do you recall that, sir?
Answer: I don't recall it specifically but – oh, sorry, yes I – no. I do actually. That one I do remember.
Question: And why? Who else was in the office at that time?
Answer: There were a number of people. Again I don't remember exactly who but specifically I do remember Michael was there. (Indicating the accused)
Question: And did you log in to your RackNine account at 4:15 a.m. on May the 2nd?
Answer: I did.
Question: And why did you log in to your RackNine account at that time?
Answer: At that time again people were shooting the breeze and we were talking and a question was asked of me how lists were dealt with in RackNine."
48Mr. Prescott then went on to state that the individual who asked the question was Mr. Sona and in response Mr. Prescott went to his computer, logged in to his RackNine account to look up the answer to the question. He then informed "the room in general" as to what the answer was. At the time of this exercise Mr. Sona was "in his cubicle" which he then described in some detail.
49He described election day at the campaign office as a busy one. He and a number of other people arrived at 6:30 a.m. to 7:00 a.m. He recalls seeing Mr. White, Mr. Morgan, Mr. Sona, Mr. Crawford and others in the office. As he put it, "lots of people". He was asked if anything memorable took place that morning in the office.
50He then offered the one thing he could remember and in fact "stood out in my mind" was that Mr. Sona had been in his cubicle, came out of his office at one point, "was shaking sort of ecstatically and in a low voice, not a loud explanation, just basically said 'it's working'."
51He did not ask Mr. Sona what he meant, nor what he was referring to and he described Mr. Sona's demeanour as "almost euphoric".
52He was taken to the RackNine records and questioned about two recordings on May 2, 2011. He acknowledged he had phoned in a recorded message and when asked why he had done that he indicated there had been reports from "quite a number of our supporters that they received a phone call indicating that their polling station had been moved". Mr. Morgan had then approached him and said, "We need to counter this. They're bombing our supporters."
53Later, at 6:43 p.m. after the office had apparently received "multiple calls" from supporters indicating they had received calls saying the polls were closing early, he was instructed by Ken Morgan to make a call, pre-record the message and send it out to the supporters. That was done on May 2, 2011. At no time thereafter could Mr. Prescott recall doing anything else on his RackNine account.
54He did, however, acknowledge that he logged into another user account on the RackNine system sometime after his recorded call to counter the calls the supporters had received. He stated that sometime during the day he had been approached by Ken Morgan who told him that he "need you to stop call (dialler)". Mr. Prescott indicated as follows:
"I was extremely hesitant because obviously I caught wind of their – there was stuff going on that day. We'd started receiving media reports of the fake calls that were going around, and so whatever was going on, I didn't want to get involved."
55He was then directed to his desk where his laptop was by Mr. Morgan. He was provided a sheet of paper with a user name and password and then described how he accessed the RackNine website. He opened his laptop, the browser apparently went directly to the RackNine website from his account which was still logged in. He logged out of his account and then proceeded to log in with the user name and password that he had been provided. He was then asked what he saw and he noted as follows:
"Knowing that what was going on was something I didn't want to get involved in, I kept my vision very limited. Because I knew the system I knew exactly what to do to stop the diallers so went to the pending calls page and noticed there was an impending dialler to go out, and I immediately cancelled it and then logged out of the system."
Mr. Prescott stated he then walked away from his desk.
56Finally in his examination in-chief when asked if he had ever heard any reference to a "Pierre Poutine" or "Pierre", Mr. Prescott stated that he had heard the name "Pierre" once. That was when the election results were in, the local campaign had been lost, but a majority government secured and people were in a "pretty happy mood". Drinks were being shared and people were having cigars and were giving various toasts to "the Government or Stephen Harper or whatever". He noted Mr. Sona had a cigar in his hand at the time and said "something along the lines of thanks to Pierre and laughed".
(iii) Evidence of John White
57This witness has an extensive background in the information technology business and also happened to be involved with the Conservative party at a local level for several years. He had in fact been a campaign manager for a federal candidate in the 2008 election.
58He described his familiarity with various people involved in the 2011 campaign including Mr. Sona whom he had met during the course of the 2008 campaign.
59His role in the 2011 federal election was as a GOTV chair (Get Out The Vote). His primary responsibilities as such were more evident during the last three days of the campaign leading up to the May 2 election date.
60He was one of the individuals who had access to CIMS and used that resource to obtain names, addresses, phone numbers and the voting history of various electors in the Guelph area. He accessed CIMS ten times from April 23 to May 2, 2011 and exported lists of telephone numbers on two occasions on April 29, 2011.
61He also exported constituent reports on two occasions on April 30, 2011. Such reports at the time did not leave a record of telephone numbers that had been exported.
62He acknowledged that such numbers on the "reports" would "likely" include non-supporters of the Conservative party. He would use this information to determine who to call to get out to vote and to enable him to identify what he called "good polls".
63He did not recall providing the list of telephone numbers to others, but conceded that he might have. He did state in cross-examination "it would be out of the ordinary for Mr. Sona to ask for the non-supporter phone list, but very ordinary for Mr. Prescott to make such a request".
64Mr. White was questioned by the Crown with respect to his knowledge of an individual named Matt McBain. He had also met Mr. McBain during the course of the 2008 federal by-election. He stated Mr. McBain was from Conservative headquarters in Ottawa and he knew him to be involved with what Mr. White referred to as "opposition research" which to Mr. White meant "finding out dirt on an opponent".
65Mr. White was directed to an e-mail dated April 26, 2011 at 11:33 p.m. from Mr. McBain. In that e-mail Mr. McBain indicated that he had checked his voicemail and had a "few day old message from a Comms guy on your campaign down there". The e-mail indicated that Mr. White had directed that individual to "give me a ring". Mr. McBain was inquiring whether the information was still required.
66With respect to the reason for this e-mail Mr. White indicated that Mr. Sona had at some point prior to April 26 approached him with a "high level of enthusiasm" and they had had a conversation. Mr. Sona at that time was asking Mr. White if he was aware how to get messages out anonymously and whether or not Mr. White would know anyone at headquarters that might assist him. Mr. White was asked further specifics of the conversation but his recollection seemed to be vague. He said "it may have been something religious to get out to the electorate" but he could not recall. Still, his "gut feeling" was that it was not a good idea and he assumed Mr. McBain would tell him that as Mr. McBain was from headquarters and he had "credibility". Mr. White did not remember if there was anyone else present when he had this conversation with Mr. Sona.
67Mr. White was referred to his e-mail response to Mr. McBain dated April 27, 2011 at 8:08 a.m. He had little recollection as to the details of that particular e-mail save and except he was indicating to Mr. McBain that Mr. Sona was "looking for advice".
68Mr. White spoke of various campaign tactics and "nefarious activities" that in his view were commonplace during election campaigns. He was upset at what he perceived to be a telephone message that had been false and had been sent by the Liberals on the Friday preceding the weekend. He had received this information from a friend and there is an exchange of e-mails showing clearly that Mr. White was not happy with the information his friend had provided.
69Mr. White described the atmosphere in the campaign office on the weekend leading up to election day as one of frustration. There had been a considerable amount of "phone mischief" and false messaging. He further described the atmosphere in the office as one of a "siege mentality" and the perception within the office was that they had been treated unfairly by the media. As he put it "things were not going well". The "nefarious activity" referred to by Mr. White, according to him, had been initiated by an opposition campaign and had been directed to undermine the Conservative campaign.
70He arrived at the campaign office on election day about 7:30 a.m. He had no recollection of seeing Mr. Sona there but did see Mr. Morgan as well as Mr. Prescott. He denied purchasing any phone or prepaid cards or registering a phone or uploading any audio message nor dealing with RackNine.
71In cross-examination he agreed a list of non-supporter telephone numbers would have nothing to do with Mr. Sona's responsibility whereas it would be "very ordinary for Mr. Prescott to receive such a list" as it was Mr. Prescott that was in charge of making automated calls during this particular campaign (by this I take it Mr. White meant legitimate automated calls).
72With respect to the conversation he had had with Mr. Sona about "anonymous calls" Mr. White candidly indicated he could not remember if he said it was a "good idea or a bad idea". He referred Mr. Sona to Mr. McBain. He was asked whether or not the discussion related to changing poll locations and Mr. White responded "I think I would have remembered that".
(iv) Evidence of Matthew McBain
73Mr. McBain is employed as a policy advisor in Ottawa. He described how he had met Mr. White during the 2008 by-election in Guelph and was shown Exhibit 7.
74He acknowledged the e-mail he had sent to Mr. White. He advised the message he had received on his cell phone referred to in the e-mail was from someone identifying himself as Mr. Sona and asking Mr. McBain to get back to him as he wished to get some information on a matter.
75Mr. McBain contacted Mr. White as there had been some media reports with respect to an incident concerning a ballot box or "something like that" where Mr. Sona had been mentioned and he wished to contact Mr. White to see if it was a good idea that he contact Mr. Sona. He stated if it was about the ballot box issue, he did not want to get involved.
76He received Mr. White's response and within 24 hours, although he could not be 100% sure, on April 27 and 28 he contacted the campaign office in Guelph. He asked the person who answered the phone to get Mr. Sona. An individual describing himself as Michael Sona came to the phone, pleasantries were exchanged and then the conversation became about auto-dial phone calls that would not be linked to the Burke campaign. Mr. McBain could not remember word for word the conversation, but it definitely involved automated calls that could not be traced. He advised he told Mr. Sona that it did not seem like a good idea nor the "best use of time" and that he should focus on "door knocking not stunts".
77The conversation lasted a few minutes and he felt by the end of the conversation he and the individual identified as Mr. Sona were "on the same page". If there were discussions about the content of the calls Mr. McBain did not remember that part of the discussion.
78"A few days later" but sometime before the election date, Mr. Sona again called and left a voicemail message, but Mr. McBain did not return the call.
79In cross-examination Mr. McBain confirmed the conversation with the person identifying himself as Mr. Sona was short, one to two minutes. He did not have a recollection of the detail, but did agree that the conversation did not seem that significant at the time.
80Although he had recollection of "automated calls that could not be traced" to a particular location, he did not remember the reason or the content of such calls if it was in fact mentioned at all.
81Nothing about the call struck him beyond "a normal crazy idea" that sometimes arises during the course of a campaign. He agreed there was certainly nothing that he could recall as significant as false messages from Elections Canada and the changing of polling stations. The conversation did not "ring any alarm" and Mr. McBain put it down to one of those "crazy ideas during a campaign that gets swatted down".
(v) Evidence of Matt Meier
82Mr. Meier is the owner operator of RackNine. A good deal of his evidence was technical in nature and is set out in the agreed statement of facts. It is acknowledged that the false telephone message that was sent to the various telephone numbers was sent through the service offered by his company. Documentation has been filed and marked as exhibits with respect to the records relating to both Client 45 and Client 93 who at the relevant time had accounts with RackNine and Mr. Meier was led through those entries in detail by the Crown.
83He described how his service is provided and that it is basically a self-service and that one need not be a "rocket scientist" in order to utilize the service to make automated telephone calls.
84Mr. Meier was directed to a series of e-mails that had been exchanged between himself and "Pierre S. Jones". Mr. Meier provided the history of the contact initially with an individual identified as "Pierre". There had been originally telephone calls to him perhaps "two maybe three" in regard to setting up the account. The call had been received on April 30, 2011. The individual identifying himself as Mr. Jones wanted to set up the account and Mr. Meier asked who had made the referral. The individual had indicated the "Conservative party" which at the time was a major customer of Mr. Meier.
85Mr. Meier did not think this was unusual as it was not uncommon at the time and no further details were required. The exchange of e-mails then followed with some issue of method of payment.
86With respect to the initial telephone call Mr. Meier could only identify the voice as a young male. He was questioned on his contact with Mr. Prescott and indicated prior to this although Mr. Prescott had been a client he had only spoken with him "a couple of times on the phone". He would however not recognize Mr. Prescott's voice and could not exclude Mr. Prescott as the voice he had heard during the call preceding the e-mail correspondence with Mr. Jones.
87In cross-examination the witness was questioned thoroughly with regard to the setting up of the account by Client 93. The timing of the original call and the relatively minimal information required to set up the account given the request for the service for the purposes suggested by Mr. Jones that might have been somewhat unique or unusual. Mr. Meier was also questioned on his relationship with Mr. Prescott, a relationship which included the fact that apparently Mr. Meier had contacted Mr. Prescott after Mr. Meier's meeting with Elections Canada to give what the defence alleges was a "heads up" to Mr. Prescott. The defence submits this call should cause the court to ultimately consider that Mr. Prescott was in fact Mr. Jones.
(vi) Evidence of Chris Rougier
88Mr. Rougier at the relevant time was director of Voter Contact (Relations) for the National Conservative party. He was the primary user and person responsible for the CIMS database. He talked generally about the database and how it contained the names of individuals, addresses and voting history. It was a database that was available to Conservative campaign offices, but there were restrictions on it including a confidentiality agreement and various geographical controls as well as others.
89He went through how the database works and was directed specifically to the activity details and exports during the relevant period of time.
90The documentation and details would indicate the time of access to the database, the individual who accessed it and the items exported. As noted there has been an agreement that the telephone exports that were received by Mr. Prescott and Mr. White during the times noted in the statement of facts were not the telephone numbers provided to RackNine.
91He described how a constituent search indicated the search for a particular individual whereas a constituent report dealt with multiple constituents. A constituent report also dealt with support level and targeted criteria.
92Such constituent reports at the relevant time were not produced or kept track of for reasons that Mr. Rougier did not know. As a result there is no knowledge of what was exported by way of a constituent report.
93Mr. Rougier stated in April 2011 the awareness that information could be obtained without being recorded exactly what was taken was not a matter of public knowledge. It is agreed that as a result, files containing telephone numbers exported using a constituent report at that time left no record of the numbers actually exported.
c) Overview of Evidence of the Crown Relating to the Accused From April 30, 2011 to and Including Election Day May 2, 2011 in Addition to the Evidence of Andrew Prescott and Matt Meier
(i) Evidence of Tyler Ing
94Mr. Ing was one of the deputy returning officers in the West End Community Centre in Guelph on the day of the election. He described that there were a number of polls within that centre and he was in charge of only one.
95It was Mr. Ing who signed the authorizations presented by the scrutineers at his particular station and he identified Exhibit 5 as the authorization purportedly signed by Mr. Crawford. That authorization was signed at 7:07 p.m. on May 2, 2011.
96He also confirmed that Michael (he was not certain of the last name) signed a similar form at 11:21 a.m. at his polling station on May 2, 2011.
97Mr. Ing was apparently called to indicate the time of arrival of both Mr. Crawford and Mr. Sona at the West End Centre, but he confirmed that the form does not indicate to him when the person arrived, how long they stayed and what they did while they were there. He also testified that there were deputy returning officers at each of the polls within that particular polling station.
(ii) Evidence of David Birtwhistle
98Mr. Birtwhistle was asked to be a scrutineer at the West End Centre for "a couple of hours" on May 2, 2011. He was to be at that particular location to conduct such responsibilities from 9:00 a.m. until 11:00 a.m. when Michael Sona was going to relieve him.
99He knew Mr. Sona and as well Mr. Morgan the campaign manager and had in fact done some work on the campaign for the Conservative candidate.
100He arrived at the location then awaited Ms. Sona's arrival as he had other commitments.
101Mr. Birtwhistle did not see Mr. Sona by 11:00 a.m., but remained. He had attended outside of the Centre with respect to a concern and when he returned into the Centre he did see Mr. Sona. He estimates the time that he first saw Mr. Sona to be somewhere between 11:00 a.m. and 11:10 a.m.
102He had not seen Mr. Sona arrive in the rink area and was not able to say when he arrived.
103Interestingly enough the first time Mr. Birtwhistle had been contacted by Elections Canada to give a statement with respect to this matter and recall the events of that day was earlier in 2014.
d) Overview of Evidence of the Crown Relating to the Accused Subsequent to May 2, 2011
(iii) Evidence of Rebecca Docksteader
104Ms. Docksteader at the relevant time was employed as an assistant to a Conservative Member of Parliament. That member's office was directly across the hall from another Member of Parliament for whom Mr. Sona worked in 2011.
105She herself did not work on the May 11 general election, but she testified a week or two after the election she saw Mr. Sona in Ottawa at the office. She, Mr. Sona and John Shudlow, who also worked with her, had a conversation of a casual nature at that time. At some point during the conversation, Mr. Sona "paused" and said there was something he wished to tell them. He then closed the door to the main hallway and at that time told Ms. Docksteader of his involvement in what he classified as a "tight race" where he had been placed during the federal election.
106He stated to Ms. Docksteader that there had been some back and forth between Conservative and Liberal campaign staffers. He described an incident where some election signs that he indicated were unauthorized were removed. He referred to "they removed them" and then told her of being spotted by Liberal staffers and a "high speed chase" had resulted.
107He further described how he had come up with a "plan" to have "a final say, so to speak" (these are words that Ms. Docksteader used, not Mr. Sona). Mr. Sona explained the plan the object of which was to divert Liberal voters to non-existing polling stations in order to supress the Liberal vote.
108Mr. Sona told her of the purchase of Visa gift cards with cash so as to eliminate any paper trail that might be left by a debit card or a personal credit card. He spoke of the purchase of a burner or temporary cell phone paid for by cash and Mr. Sona's request for a Liberal phone list from a friend or an acquaintance that, according to Mr. Sona, "owed him a favour". He then spoke of the use of the gift card to enable the calls to be sent out through an online company.
109Ms. Docksteader testified she understood from Mr. Sona's story that he was the one who had purchased the Visa card. Mr. Sona had not indicated there were a number of people involved and Ms. Docksteader stated "it sounded like it was a very isolated plan operation". She had the impression from Mr. Sona that there had been only one gift card purchased.
110Mr. Sona had not indicated who had purchased the card nor the phone nor who had created the message. Further he had not named the online company that had sent out the calls.
111Ms. Docksteader advised Mr. Sona stated the plan had been carried out and he had taken a drive to one of the locations where the voters had been diverted. He spoke of "an old mall in Guelph" to which he travelled, and noted a number of people in the parking lot "clearly confused" as there was no indicated entrance for a voting location nor instructions. Her impression was that as he was telling the story he was "very happy with the outcome of his plan".
112He advised Ms. Docksteader of the particulars of the call that had been sent and indicated that after the message had been recorded the phone that had been used had been disassembled into a number of pieces and those pieces were sent to various locations. He explained this was done to eliminate the possibility the phone could be tracked. He did not say who disassembled the phone.
113The witness indicated at no time had Mr. Sona mentioned any names save and except a reference to Pierre Poutine a generic name that he had provided to create the online profile. He also indicated he had provided a fake address of which she could not recall the specifics.
114It was Ms. Docksteader's impression that Mr. Sona was taking full credit for the assembly of the plan, that nothing could be traced back to him and he felt he had covered his tracks.
115At the time of this conversation she had not previously heard any mention of automated telephone calls in Guelph.
116When asked to describe his demeanour during the course of this conversation the witness indicated that Mr. Sona appeared to be "incredibly impressed", felt he had been "meticulous", that the plan was well thought out and the accused was pleased with the outcome.
117The witness indicated from her understanding other than the individual from whom Mr. Sona had acquired the Liberal voting list, no other names had been mentioned.
118The witness stated she felt uncomfortable with the story, but in view of her past history with Mr. Sona which involved "very animated storytelling" she was uncertain if she could take the information seriously.
119When the story then first "broke in the news" in February 2012, she recalled the conversation, shared it with her employer and ultimately with the investigator for Elections Canada.
(iv) Evidence of John Schudlo
120This witness is another young adult who has had some political involvement since 2009. He too had worked on the election in 2011. He knew Michael Sona as an assistant to a Member of Parliament directly across the hall from the office where Mr. Schudlo worked with Ms. Docksteader. He was present during the course of the conversation Mr. Sona had with Ms. Docksteader as she testified to.
121Mr. Schudlo appeared as cautious and did not present as a witness anxious to testify at all. It was obvious he was not happy to be in court and he was very careful to testify as to what he could only precisely recall.
122He indicated following the election he had returned to Ottawa and a week or so thereafter he had conversation with Mr. Sona in the office with Ms. Docksteader. He had been keen to talk to Mr. Sona about a ballot box issue that had been the subject of some media attention during the election and they talked about that initially.
123Mr. Sona went into "great detail" about that issue, but Mr. Schudlo did not recall the details.
124The conversation then turned to the campaign generally in Guelph. Mr. Sona at that point shut the door to the office and talked about the plan at least he and one other person had executed.
125Mr. Schudlo recalls references to the obtaining of a list by calling in a favour, the use of a disposable phone and that Ms. Sona and at least one other person had made arrangements for automated calls to go out to advise polling stations had been changed.
126He recalled some conversation about "a rundown mall" and recalled further particulars of that conversation when given an opportunity to refresh his memory from the statement he had made. Basically he recalled that the message sent was such that the individuals were not to go to regular polls due to high volume and were redirected to another polling station.
127He described Mr. Sona's mood as good while telling this story and that he seemed to be "revelling in it". The witness mentioned that his impression was there was a "bad boy vibe". Mr. Schudlo's impression also was that there was one other person or more involved and that the plan was executed by others as well as Mr. Sona. Mr. Schudlo stated that prior to this conversation he had heard nothing about automated calls out of the Guelph campaign office.
128Of note, he indicated he thought of Mr. Sona as a storyteller who told interesting stories sometimes "over the top". His experience with Ms. Sona was that he tells a colourful story sometimes "playing the crowd".
(v) Evidence of Mitchell Messom
129Mr. Messom is another one of the witnesses who took part in the internship program with the Conservative party resulting in him also working for a Member of Parliament in 2011. He was acquainted with Mr. Sona and described Mr. Sona as friendly and someone he would see every other day, if not every day.
130He, too, had worked on the 2011 election campaign for a member in Winnipeg. He returned to Ottawa the day after the election and "a week or so" thereafter he went to visit Mr. Sona in his office.
131His purpose in speaking with Mr. Sona was to get the "story on the ballot box issue" that Mr. Sona was somehow tied with during the election. He met with Mr. Sona and Mr. Sona discussed that issue which had generated some media reports indicating he had grabbed a ballot box at the University of Guelph polling station. Mr. Sona denied that, but acknowledged although he never touched the ballot box, he may have got a little excited and got close to it.
132The conversation then morphed into a discussion about the campaign in Guelph. Mr. Messom asked if there had been any "hijinks" as there had been in Winnipeg which involved the stealing of some signs. Mr. Sona then described the sign stealing issue and acknowledged that he was involved with some sign stealing, had been chased and almost got caught.
133Mr. Sona then "kept on going" and indicated to Mr. Messom that he had "kind of stuck it to the Liberals" as he had set up a "daemon dialler" to send voters to the wrong voting or a non-existing voting area.
134Mr. Sona described how that had been done. He indicated he had placed calls to Liberal supporters through the daemon dialler and went into detail as to how he had done that. He indicated to Mr. Messom that he had "got a pre-paid" credit card and then bought a burner phone to order the service.
135Mr. Messom stated Mr. Sona said he got the credit card from a gas station and had used cash to pay so it could not be traced.
136Mr. Messom inquired of Mr. Sona how he had identified the Liberal supporters and the accused indicated he had impersonated a Liberal campaign staffer and communicated with their headquarters to get a list of their supporters.
137Mr. Sona also stated he got a cell phone blocker to drop off at Liberal headquarters the day of the election. Mr. Messom stated he did not believe that one "as much". That apparently "seemed a little bit of a stretch".
138Mr. Sona told Mr. Messom of the address that had been used when he registered the burner phone and he seemed rather proud of himself for coming up with the Joliette address.
139While Mr. Sona was telling Mr. Messom this he presented as excitable, "like he did something really good and nobody knew about it so he had to explain it to people". He said he was quite pleased with himself, mentioned no other names and Mr. Messom asked him how he thought he was going to "get away with it". At that point Mr. Sona referred to a limitation period after which "they can't charge me".
140Mr. Messom's reaction was at the time that it was a "bit of a tall tale". He found the cell phone scrambler "a little bizarre" and was amazed that Mr. Sona was giving him that information. He told Mr. Sona he should not be telling anyone and should probably just "shut the fuck up".
141Sometime thereafter which Mr. Messom estimated to be about a month, he again had contact with Mr. Sona. Another individual was present, the ballot box issue came up again and Mr. Sona again explained the issue and the sign stealing. He also discused the issue with the daemon dialler calls again covering "almost the exact same details". The one significant difference was on this occasion Mr. Sona had indicated that he used an e-mail to impersonate a Liberal campaigner in communicating with their headquarters. Otherwise it was the "same story again including the fact that Mr. Sona indicated he used cash to buy the "burner phone from a gas station"".
142It should be noted earlier Mr. Messom had said during the first conversation Mr. Sona indicated he bought a prepaid credit card from a gas station to pay for a burner phone whereas in the second conversation Mr. Sona used cash to "buy a burner phone from a gas station". That particular evidence was never clarified. It may have simply been a situation where Mr. Messom misspoke or it may not have been.
143Mr. Messom discussed these conversations with another colleague in March 2012. He was then advised he needed to talk to somebody and within a short time thereafter he was interviewed by Elections Canada. Shortly after that he ran into Mr. Sona in barbershop in Ottawa. They had a brief discussion during which Mr. Sona indicated, "You know what, if you could do me a favour and not talk about what we talked about, from what I told you, to anybody that would be great."
(vi) Evidence of Benjamim Hicks
144Mr. Hicks as well was involved in the internship program with the Conservative party in Ottawa. Through that program he met Mitchell Messom whom he described as a close friend and also Michael Sona whom he described as a "friendly acquaintance".
145Following the May 2 election he had met Michael Sona at a social gathering. There had been some general discussion about the Guelph campaign, but he could not recall what that discussion was about and indicated that Mr. Sona and he did not get into specifics. He had read about the ballot box incident, but could not recall if that was even discussed.
146He did recall however on July 29, 2011 he and others met in a restaurant in Ottawa. At some point just he, Mr. Sona and an individual named Conrad Johnson were present and the discussion turned to the Guelph campaign. It was this witness's impression that the campaign had been a particularly "dirty campaign". Mr. Sona at some point looked over his shoulder in a manner perceived by this witness to be making certain no one was in earshot and then readily told Mr. Hicks and Mr. Johnson that he had been involved in a plan to misdirect the voters that involved a cellular phone, computer and automated telephone calls.
147It was this witness's impression that it was a "purposeful plan" to misdirect Liberal voters from their polling stations. He also remembered Mr. Sona indicating he had a feeling of being on the television show 24 and attempting to deliver the calls as quickly as possible.
148Mr. Hicks was "shocked" by the whole conversation and was "a little bit taken aback by the whole thing". He asked Mr. Sona if the candidate was aware of the plan and he distinctly remembers Mr. Sona in a joking manner asking "are you wearing a wire".
149He remembers Mr. Sona being "very proud" of himself, that he had created some chaos and was proud of what he had done. He also described him as being very boastful.
150He could not recall if there had been any discussion about whether others had been involved. He knew the campaign in Guelph had been controversial, but he did not know the details of any automated calls from the media or other source at the time of this conversation.
151When asked if Mr. Sona had indicated the purpose in making the calls it was clear the purpose was to prevent Liberal voters from voting by misdirecting them.
Position of the Parties
152The Crown submits that the evidence in its totality establishes beyond a reasonable doubt that the accused is guilty of all the essential elements of the charge before the court. The Crown has effectively conceded that more than one person was involved in executing the "plan" in this matter but although there may have been more than one person involved, the Crown submits that the accused played an instrumental role in the scheme and is thus liable as a party under s. 21(1) of the Criminal Code.
153The Crown points to the events that took place prior to the election date including Mr. Sona's apparent interest in sending out anonymous calls and the steps he took to gain information with respect to that, the opportunity Mr. Sona had and the motive in place for creating such calls. The Crown submits Mr. Sona had the means to carry out the plan and as well his culpability is established by his admissions to various individuals following the election.
154The Crown, although acknowledging now that there was at least one other person involved in the scheme, makes no submissions as to whom that might be. The Crown has pointed out various evidence that might lead in fact one to exclude Andrew Prescott as a candidate. The Crown submits in any event if the court is not satisfied beyond a reasonable doubt that Mr. Sona was in fact, as the Crown puts it, "Pierre Poutine and Pierre Jones", the Crown still has established to the degree required that Mr. Sona took steps to facilitate, promote or encourage the perpetrator or perpetrators to commit the offence.
155The defence while acknowledging the circumstances certainly raise suspicions concerning the involvement of the accused, points out that this is a criminal matter with a very high onus of proof. At the end of the day the defence submits the Crown has not met its onus to prove beyond a reasonable doubt that Mr. Sona was in fact either the principal perpetrator or a party to the offence.
156Defence counsel meticulously and thoroughly in submissions dealt with each individual who had given evidence on behalf of the Crown pointing out shortcomings in their evidence and reasons why the evidence should not necessarily be accepted. Specifically the defence alleges that Andrew Prescott is not a credible nor a reliable witness and his evidence should be discounted completely for a number of reasons.
157Defence submits that although there appears to be evidence upon which the court could find that Mr. Sona knew of the plan, the Crown's evidence is completely absent with respect to proving beyond a reasonable doubt that Mr. Sona took any active part in the plan itself. The defence submits that the charge before the court should be dismissed as the Crown has failed to meet its onus.
Analysis of Law and Facts
158The charge before the court is a criminal charge and as with all criminal offences the accused, in this case Mr. Sona, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Sona beyond a reasonable doubt rests with the Crown and it never shifts. Mr. Sona does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if after I consider all of the evidence I am satisfied the Crown has proven the case to the degree required.
159I must consider the evidence carefully and dispassionately and without any trace of sympathy or prejudice for or against anyone involved in this matter. Then after reflecting upon all of the evidence I must weigh it and make a decision as to whether I accept the entire evidence given by a witness, a portion of that evidence or none of the evidence given by the witness. After considering the whole of the evidence I must reach a conclusion as to the guilt of Mr. Sona beyond a reasonable doubt or otherwise acquit him.
160As noted in Regina v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at paragraph 39:
"A reasonable doubt is not an imaginary or a frivolous doubt. It must not be based on sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt."
161Here, although the Crown initially submits it has established to the degree required that Mr. Sona was the person who actually "pulled the trigger" on May 2, 2011, if the court is not so satisfied the Crown submits that any one of the acts undertaken by Mr. Sona would have had the effect of assisting the actual perpetrator in the commission of the offence. The Crown relies on s. 21 of the Criminal Code which states as follows:
"21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence."
162As can be seen in s. 21(1) (a) an individual is made liable for the role as a principal if the person commits the offence. Section 21(1) (b) makes the accused liable as a party for acts or admissions which are done for the purpose of aiding a principal to commit an offence. It is not sufficient that the acts had the effect of aiding in the commission of the offence, the purpose must be proven. Section 21(1) (c) makes an accused liable as a party to the offence if that accused abetted the principal. Abetting simply means encouraging. Merely being present is not enough, unless presence is accompanied by such additional factors as the prior knowledge that the principal was going to commit the offence. Section 21(2) extends the liability to the principal and parties beyond the wrongful act originally intended.
163As noted in Regina v. Briscoe, 2010 SCC 13 (CanLII), [2010] 1 S.C.R. 411, para. 13 and 14:
"[13] Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. …
The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.
[14] The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1) (b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge's finding that Mr. Briscoe performed the four acts of assistance described above is not disputed."
164In Briscoe the Supreme Court also stated the mens rea requirement as having two components, intent and knowledge. That is the Crown must prove an accused intended to assist the principal in the commission of an offence and the accused must know that perpetrator intends to commit the crime although he or she need not know precisely how it will be committed. As noted in Briscoe that sufficient knowledge is a prerequisite for intention is simply a matter of common sense (see Regina v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973 and Regina v. Maciel, 2007 ONCA 196).
165Further, in Regina v. Dooley, 2009 ONCA 910 (CanLII), [2009] O.J. No. 5483 at para. 123 Mr. Justice Doherty of the Ontario Court of Appeal stated as follows:
"The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime."
166In dealing with the issue at hand the evidence here establishes beyond any doubt, reasonable or otherwise, that the individual or individuals who implemented the plan to create, upload and ultimately activate the false telephone message purportedly to be from Elections Canada prevented or endeavoured to prevent electors from voting in the May 2, 2011 federal election. The sole issue here is whether or not the Crown has established beyond a reasonable doubt that the individual or one of the individuals responsible is in fact the accused Michael Sona.
167This case is not about any particular political campaign or political party. It is not about the manner in which political campaigns may be carried out or conducted or whether or not the conduct within those campaigns is considered "nefarious", "juvenile", "accepted" or perhaps even disturbing. It is simply about whether or not the Crown has met its onus in establishing the guilt of Mr. Sona.
168In looking at that issue it is initially necessary to deal with the evidence of Andrew Prescott as he was the primary witness called by the Crown and a witness who provides some evidence which stands on its own. That evidence at the very least contributes to the suspicion suggested by counsel concerning Mr. Sona.
169Mr. Prescott presents as a witness whose evidence both counsel agree should be approached with caution. The Crown reasonably acknowledges there are "obviously" issues with respect to the reliability of Mr. Prescott's evidence. I agree with both counsel.
170Mr. Prescott gave his evidence following the execution of an immunity agreement on December 17, 2013. He had also been interviewed or at least an interview had been attempted earlier in March 2012, but the main interviews with the investigator and Mr. Prescott took place following the execution of that agreement in February 2014. Mr. Prescott presented as a witness at trial whose evidence was largely self-serving and meant to portray himself as an innocent party throughout. Indeed, when one hears the skillful cross-examination of Mr. Prescott by defence counsel concerning the interviews and the disclosures made at various times to Elections Canada, concerns about Mr. Prescott's reliability are obvious.
171Mr. Prescott seems to indicate he was suspicious when Mr. Sona first started making inquiries, but he carried on and responded. He was rather quick to note that he responded, for example, to Mr. Sona when Mr. Sona allegedly questioned him on the tracing of calls, that "everything could be traced". Another example is that he required a "nudge" from Mr. Morgan who apparently gave him instructions on election day to log into Client 93 on RackNine and take certain steps. He presented as an individual who was cautious in the presentation of his evidence. He either had no recollection of certain events or paused during the course of his evidence to consider his answer. He seemed to have forgotten why he provided Ken Morgan with a piece of paper with RackNine's contact information on it or the follow up e-mail copied to Mr. Sona. It seemed a rather odd request and one would have thought at least an inquiry would have been made.
172He would often ask counsel "is that a question" or words to that effect. He seemed to be perhaps buying some time to formulate an appropriate answer. He presented as a witness who has the rather unique capability of having his memory regenerated with the passage of time up to and including the date of trial and making statements that even the Crown agrees were incorrect.
173It was obvious from the questioning by defence counsel of Mr. Prescott and others that Mr. Prescott was being portrayed by the defence as "Pierre" or at least that possibility and that in any event he took an active role in the plan. There certainly is some basis for the court being concerned Mr. Prescott was involved more so than he has indicated. Without being completely exhaustive of those reasons they include the following:
Mr. Prescott has an extensive IT background. He was in fact involved with the setting up of the computer equipment and other technical equipment at the campaign headquarters. He is familiar with terms such as proxy server, although he is quick to point out that he never utilized one himself. It is of note that part of his responsibilities in addition to being the "tech guy" on site was also the sending out of automated calls through RackNine apparently for legitimate purposes (example, the GOTV campaign and the Bill Davis lunch).
It may be just a coincidence that Mr. Prescott happened to be a client of RackNine and apparently a reseller and had been for some time. He had an outstanding account of his own, paid for that account in the same fashion as Client 93 and appears to have used the service in the same fashion as Client 93, eg. use of a test call. His relationship with RackNine was established prior to the election and he seems to have had a fairly good relationship with Mr. Meier who acknowledged that following contact from Elections Canada in November 2011, he advised Mr. Prescott.
Again, although it might just be a just coincidence Mr. Prescott seemed familiar with prepaid cellphones and in fact had worked at Future Shop in the cell phone department and previously with Telus. He would have knowledge of the phones, where they may be purchased and the use of such a phone as a result.
The Crown points out that Mr. Prescott was on vacation and did not return to the office until April 29, but it is of note other than some inquiries being made, nothing actively took place with respect to the downloading of any telephone messages or message until Mr. Prescott was back in the office.
Mr. Prescott had as much a motive as apparently anyone else in the office to commit this offence given the ongoing Liberal tactics as described and the fact he does not appear to have been pleased at all with what he described as a "classic Liberal black op" which ironically also involved false telephone messages. As he described it, people, including himself presumably, were absolutely "livid".
Mr. Prescott was in charge of the computers set up within the office and also appears to have been active in the obtaining of the computers used on site together with his own laptop. Following the election it was Mr. Prescott that wiped all the computers clean and had them destroyed at some point in time and by the time he was interviewed or at least contacted by Elections Canada none of the computers continued to exist.
He seemed to have a very close relationship with Ken Morgan who was the campaign manager and who seems to have been actively involved in instructing Mr. Prescott with respect to particulars about RackNine and the actions requiring him to log on to Client 93 on May 2, 2011. He has stayed in touch with Mr. Morgan who apparently is out of the country and although he states that contact is very infrequent, his evidence generally with respect to the information as provided to Mr. Morgan is rather vague. He has however apparently encouraged Mr. Morgan to pursue an immunity agreement as he had and be interviewed by Elections Canada.
Mr. Morgan had requested RackNine's contact information previously and Mr. Prescott states he wrote it out on a piece of paper. Mr. Morgan then is said to have lost the piece of paper and instructed Mr. Prescott to send the information by e-mail which was done on April 30, 2011 by Mr. Prescott. Further, Mr. Prescott seems to have had an arrangement with Mr. Morgan concerning his own election expenses. He provided a list of expenses to Mr. Morgan, but was paid an honorarium as noted on Exhibits 21 and 22. Of interest is that the formal candidate's electoral campaign return does not indicate expenses, only an honorarium and the amount of that honorarium seems to coincide very closely to the expenses Mr. Prescott said he incurred which were never disclosed as required in the formal return. All of this simply speaks to what appears to be a close relationship between Mr. Prescott and Mr. Morgan.
Mr. Prescott presented as a witness who was trying to put his best foot forward. He acknowledged he felt the media had been unfair to him in the reporting of this matter initially and that when speaking with the media he was careful. In doing so he indicated he was not involved, but "left the door open" because he did not disclose some of the "finer details". As he put it, he wanted to be very truthful but he also wanted to protect his reputation.
Mr. Prescott presented as an individual who has high standards and one who is actively engaged in politics or at least was at the time. Still, it would appear from the cross-examination that Mr. Prescott was not above taking part in political stunts himself. The issues of the bingo card and the e-mail that was put to him that would have been sent to various individuals setting out some political strategy or perhaps non-strategy "that you come up with at 5:00 a.m." all suggest that even his self-declared standards can be somewhat compromised.
There is the issue of the missing notes that he said he took on May 2 when he received the calls from the Liberals together with the piece of paper that Mr. Morgan had presented to him when he instructed him to log onto Client 93. Those together with the computers are no longer available.
The issue of viewing of the cell phone is a concern to the court. At trial Mr. Prescott indicated he had seen the cell phone on the desk of Mr. Sona and also had seen wrappings from that cell phone which he was able to identify in the garbage. However he had not disclosed the issue of the cell phone to investigators from Elections Canada even after the immunity agreement during the course of his first interview with the investigators in early February 2014. He did however state on the stand that he had disclosed that information to the Crown and the investigators during the second interview in the latter part of February. The Crown conceded following the examination of Mr. Prescott that in fact the disclosure with respect to seeing the cell phone on the desk had not been made during the second meeting with the investigators. It would appear that the presence of the cell phone was something that came up for the first time during the course of Mr. Prescott's evidence at trial. He had disclosed the issue of the garbage previously to the investigator and even then, there had been no mention of a cell phone being seen on Mr. Sona's desk, nor any tie-in with Mr. Sona at all with regard to the garbage.
Mr. Prescott was contacted by Elections Canada in November 2011, but did not respond initially. He spoke to the investigator by telephone in February 2012 and acknowledges at that time that he withheld information from the investigator. He states he did that to protect himself. He executed the immunity agreement in December 2013 and is then again interviewed apparently on two occasions in February 2014. He acknowledged in cross-examination that on February 3, 2014 the first interview that month he was not withholding information "which he could recall at the time". He then again is interviewed on February 27, 2014 when presumably he should continue to have no concerns about making disclosure as a result of the immunity agreement. Still, it appears the cell phone was not disclosed. It also seems other items do not appear to have been disclosed during the course of his first interview including the alleged "toast to Pierre" which in fact was not disclosed until April 2014 even after the second interview. Of particular note, is the 4:15 a.m. log-in by Mr. Prescott at which time he says he is effectively conducting a business promotion with a number of people in the office where Mr. Sona supposedly makes a statement noted in Mr. Prescott's evidence. That is not disclosed during the February 3, 2014 interview either. In fact, Mr. Sona is not even mentioned as asking a question and Mr. Prescott seems very much at a loss as to why he was doing what he was doing and he had been "trying to figure that out for two years". When he is interviewed again on February 27 he now remembers that the log-on was to "drum up future business" with a number of "young campaign guys" and then recalls as well that he logged on to RackNine at that time because Mr. Sona had asked a question and he wished to answer it. His answers with respect to this area as well as a number of areas are inconsistent and his memory appears to be evolving and regenerating as this matter proceeds.
174At the end of the day I disregard Mr. Prescott's evidence except where it may be confirmed or corroborated in some respect by way of other oral or documentary evidence. He does not present as a witness who provides evidence that the court can reasonably rely on to any extent and unless there are parts of his evidence that can be substantiated by other evidence that I do accept, I do not accept his recollection of Mr. Sona's interaction with him or as described by him.
175Specifically I do not accept his evidence with respect to Mr. Sona's apparent reaction at the campaign offices on the morning of election day when he supposedly came out of the office and said something to the effect of "it's working" in a rather euphoric tone. I also reject Mr. Prescott's evidence with respect to the "toast to Pierre". No one else has given evidence with respect to these comments, although presumably there were other people present. The comments in any event in isolation do not make much sense if Mr. Sona is involved in this matter by himself or with someone else other than Mr. Prescott. They do not appear to be items that would be remarkable without some context. If they were memorable to Mr. Prescott, it seems it might be supportive of the fact that he either knew what was going on and/or was a party to it. The same can be said with respect to the "business promotion session" that occurred at 4:15 a.m.
176The rejection of a good deal of Mr. Prescott's evidence, as it implicates Mr. Sona, is however not the end of the matter. There is evidence otherwise leading up to and including election day and thereafter that deals specifically with Mr. Sona's activities, conduct and utterances.
177I have considered that evidence in its totality, the principles to be applied and the submissions of counsel. I find that notwithstanding the absence of Mr. Prescott's evidence on some points, the balance of the evidence, which I do accept, is sufficient to establish beyond a reasonable doubt that Mr. Sona is guilty of the offence charged. I find that although the Crown's evidence certainly raises suspicions, it falls short of establishing Mr. Sona was the person acting on his own who actually uploaded the false telephone message or conducted the actual technical interaction with RackNine. However, I am fully satisfied beyond a reasonable doubt that Mr. Sona at the very least aided or abetted the person or persons who did so and by so doing he facilitated, furthered and promoted the commission of the offence and therefore was a party to it.
178I have come to that conclusion for the following reasons:
1. Mr. Sona, I find, indicated prior to the weekend preceding the election, an interest and intention to send automated telephone calls that would not be able to be traced to the sender. This is clear from the evidence of John White, Christopher Crawford and Matthew McBain.
With respect to these witnesses and in particular John White and Christopher Crawford, I find that they presented their evidence candidly and in a very fair manner specifically as it relates to Mr. Sona. Although both related evidence of inquiries or comments made by Mr. Sona, they indicated they could not necessarily recall all details of the comments or conversations overheard and to some degree downplayed the comments attributed to Mr. Sona as simply, I find unfortunately, "things you always hear in an election campaign".
Their presentation in my view enhances the reliability of the evidence they gave implicating Mr. Sona. The same could be said of Mr. McBain's evidence.
John White testified he could not recall the exact reason (if any was given) that Mr. Sona inquired apparently with some enthusiasm if he knew how to get messages out anonymously without being tied to the campaign or if he knew someone at headquarters that might assist him. Mr. White had a "gut feeling" it was not a "good idea" and referred Mr. Sona to Mr. McBain.
This referral resulted in the exchange of e-mails between Mr. McBain and Mr. White.
I find Mr. McBain and the accused did in fact have contact and during the conversation Mr. Sona again expressed an interest in sending out automated calls that could not be traced. Again, although not certain of all the details of the conversation Mr. McBain was clear about the "automated calls" inquiry and advised Mr. Sona (and I find it was Mr. Sona) that it was not a good idea and he should concentrate on legitimate campaign activities and not "stunts".
This is one area of the evidence that is similar to Mr. Prescott's evidence concerning the "traceability" of calls expressed by Mr. Sona prior to Mr. Prescott's vacation and which is corroborative of that particular evidence of Mr. Prescott.
2. The evidence of Mr. Crawford, although not necessarily dealing with the tracing of such calls, clearly shows and I accept Mr. Sona had a discussion with Mr. Morgan during the campaign which was overheard by Mr. Crawford. Mr. Crawford's evidence which I accept was that there were comments about methods of voter suppression stated by Mr. Sona during this conversation. The conversation overheard involved the redirecting of voters to a wrong polling station and the calling of Liberal supporters late at night to irritate them.
These were in fact the very subject matter of the two telephone messages uploaded to the account of Client 93. I find this was more than just a coincidence and leads to the reasonable inference that Mr. Sona was involved in the formulation and uploading of those messages.
Mr. Crawford, although again not able to recall all of the conversation, spoke to Mr. Sona shortly after this conversation was overheard. His evidence is that he told Mr. Sona and I accept his evidence, that it was not a good idea and elections should be "won fairly and squarely". When asked if Mr. Sona responded Mr. Crawford indicated tellingly "not really".
Mr. Crawford again, like other witnesses who gave evidence implicating Mr. Sona, did not embellish his evidence at all concerning Mr. Sona. He, like others, presented somewhat as a reluctant witness, uncomfortable to some extent with the giving of evidence involving a friend and a colleague. I find this is supportive of the reliability of the evidence and the acceptance of it by the court.
3. It was shortly after these conversations that the activity of Client 93 with RackNine initiated. The evidence of Matt Meier confirms contact with a young male by phone and the creation of Client 93 as traced through the e-mails produced. Looking at those e-mails and in particular the e-mail creating "Pierre Jones" and the proximity of the birth of Client 93 to the inquiries to Mr. McBain and Mr. White lead to the reasonable finding that Mr. Sona was in fact the author of the e-mail. The wording of the e-mail itself suggests a marketing or communications theme and the court notes that Mr. Sona was the communications director in charge of relations with the media in the campaign and was apparently "very good" at his work.
Contact with Mr. Meier occurred through the burner phone which had been purchased according to the statement of facts at 7:04 p.m. on April 30. The phone was activated on the same date at 8:48 p.m. and used to contact Mr. Meier around 9:00 p.m. The acquiring of and the purchase of the phone and the method of payment were ultimately described in some detail by Mr. Sona to others. I am satisfied it was Mr. Sona that had the telephone contact and e-mail correspondence with Mr. Meier. I find it was Mr. Sona who took the steps to set up the account of Client 93 the vehicle by which the telephone numbers were ultimately uploaded and distributed on the morning of May 2, 2011.
4. The Crown spent a good deal of time during the trial and in its submissions attempting to show Mr. Prescott was not involved in the creation of Client 93 or with the contact that account had with RackNine. For reasons previously given, I am not satisfied Mr. Prescott was or was not involved. However the evidence involving the timing of the purchase of the pre-paid Visa cards and the admitted facts of computer contact with RackNine at or about the same time as the purchase of at least one of the cards would indicate that at least one more individual other than Mr. Sona was involved in this plan.
The evidence and/or absence of evidence might lead to the conclusion that one or more individuals were involved in this plan. That may or may not be Mr. Prescott as alleged by the defence or may or may not be Mr. Morgan. Mr. Morgan seems to have been involved with obtaining information from and providing instructions to Mr. Prescott as evidenced by Mr. Prescott's evidence, but also as supported by the e-mail providing contact information for RackNine. Mr. Morgan had access to CIMS, was the campaign manager with likely access to phone numbers and constituent reports secured by Mr. White. He was at least a party to the conversation overheard by Mr. Crawford and apparently he and Mr. Sona worked closely together.
Whoever else was involved is not known, nor do I make any finding as to who that individual or individuals might be. However, I am satisfied that Mr. Sona was involved in the scheme very actively and given his own admissions to various individuals after the election, is the individual who purchased the cell phone and one or more of the various credit cards at the very least.
5. The Crown argues that Mr. Sona had the motive based on the "siege mentality" and upset within the office as noted by Mr. White. However, that seems to have been a universal mindset within the office generally. Still, it is of note the inquiries of Mr. White by Mr. Sona and the conversation overheard by Mr. Crawford took place before the concerns about opposition tactics escalated. Mr. Sona on his own admissions had been involved in some issue about a ballot box (and the court makes no finding on that particular issue, only that it was apparently a matter of concern to a number of people who gave evidence) and the removal of some unauthorized signage. He was actively involved in ongoing campaign issues and it is quite likely that the actual implementation of the plan was the result of the escalation tactics attributed to the opposition.
So although others may have been concerned, I find Mr. Sona was concerned and took active steps to counter such tactics and these steps included the creation of Client 93 and the actions that followed.
6. The Crown submits Mr. Sona had the opportunity to activate the sending of the messages which occurred before his arrival at the West End Centre at least as noted by the evidence of Mr. Ing and Mr. Birtwhistle. It is also submitted that he had the opportunity to log into the account at 1:00 p.m. as his duties as a scrutineer would have permitted him to come and go as he pleased throughout election day and allow him to return to return to the campaign office.
There is no or at least insufficient evidence to indicate he was in fact at the office on election day at any point. I am not prepared to find that.
Further, it was apparently Mr. Morgan who instructed Mr. Crawford to replace Mr. Sona at the West End location which Mr. Crawford did at 7:07 p.m. or before and after the apparent log in by Mr. Prescott on instructions of Mr. Morgan to cancel calls on the account of Client 93. Appreciating Mr. Crawford's sign-in does not indicate when he actually arrived (he said he may have arrived an hour before). Neither does Mr. Sona's sign-in at 11:21 a.m. indicate, on the evidence presented, his actual arrival time at the West End Centre.
The evidence of opportunity on election day is minimal and speaks equally to others or another being involved with Mr. Sona which is the position ultimately taken by the Crown. Mr. Sona was actively involved as a creator of the plan and furthered the plan by setting up the account with RackNine, however the evidence fails to satisfy the court to the degree required that the actual contact with RackNine and Client 93 via the computer was necessarily always contact by Mr. Sona. Still, although the evidence may not be sufficient to establish Mr. Sona was the one that effectively "pulled the trigger" or had the continuing contact by computer with RackNine and the actual sending out of the messages on May 2, 2011, he was, I find, fully aware of that being done and played a very active role in putting that process into motion.
7. Perhaps the most significant evidence of the culpability of Mr. Sona and his involvement in this scheme comes ironically from Mr. Sona himself. This of course is in the form of the evidence of Rebecca Docksteader, John Schudlo, Benjamin Hicks and Mitchell Messom.
The defence made a valiant effort to counter this evidence by suggesting to these particular witnesses matters of collusion, timing, lack of note taking, exposure to extensive media coverage and small inconsistencies in their various statements, but ultimately I find without any success in attacking their evidence. I accept the evidence of those various witnesses concerning their contact and comments made by Mr. Sona and that that evidence accurately reflects the contents of those conversations.
These witnesses have no motive to fabricate. John Schudlo and Benjamin Hicks made it clear when they gave their evidence that they were only stating what they actually recalled being said by Mr. Sona. I find the same for Rebecca Docksteader who pointed out in her evidence that it was her words and not those of Mr. Sona that she was using on occasion. The same can be said with respect to Mitchell Messom.
These witnesses were candid, forthright and consistent in the giving of their evidence. There are some differences internally, for example, Mr. Messom's recollection as to the location where the phone and/or the credit cards may have been purchased which differs from the evidence before the court, but ultimately these differences are minor and of no consequence.
The disclosures made by Mr. Sona to the various witnesses were detailed and provided unique parts of the plan and were presented in a manner as indicated by the witnesses consistently that was boastful. Mr. Sona seemed to be very proud of his actions and this was expressed by all of these witnesses.
The details of the purchase and destruction of the phone used, the content of the false message, the purchase and use of credit cards, the use of an online company to make the calls and the efforts to cover tracks were all particularized in full or in part to all of these witnesses by Mr. Sona. These discussions all took place within a very short period of time after the election and well before any details of the scheme were available for public consumption. They were details only known to Mr. Sona and anyone else actively involved in the scheme. The details were largely in agreement with the results disclosed by the investigation which followed in this matter and with the agreed statement of facts.
It is argued these details might be known to someone merely aware of the plan. However, with respect to Mr. Sona, other evidence belies that theory. Mr. Sona himself told Ms. Docksteader about following up on the plan by going to the false polling station (at an old mall). He tells Mr. Hicks about feeling like he is on the TV show "24". He tells Ms. Docksteader about the creation of "Pierre Poutine" and Mr. Messom speaks of Mr. Sona showing pride in his creativity when discussing the false address that was provided for "Pierre".
There may be minor differences in their recollections of Mr. Sona's disclosure, but that is to be expected. However these differences are of no consequence, I find, as the main aspects of the scheme which Mr. Sona discussed with all witnesses were consistent throughout his disclosure to them.
The defence ironically relies as well on Mr. Sona's apparent reputation for storytelling, over the top descriptions of past events and his ability to "play to the crowd" to detract from the reliability of his own disclosure. However, the details provided and the "obvious bad boy vibe" apparent in his disclosure to one or more of the witnesses as well as consistency in the main elements of the story all lead the court to find that Mr. Sona was in fact acknowledging his own involvement in the plan and the details were known to him as a result of that involvement. He may have embellished how the list of numbers was obtained, ie. from a Liberal source by him "calling in a favour" as that appears to be somewhat different than the evidence agreed to as to the source of the telephone numbers, or he may not be and the investigation simply got that wrong. However, I find that he was not fabricating the main details of the plan. The evidence shows otherwise. He was not taking credit for the work of others. He should have heeded the advice of Mr. Messon but he did not. His apparent arrogance and self-importance prevailed. He was not just telling another story as evidenced by his comment to Mr. Messom on the occasion where they met after the incident became public when he indicated to Mr. Messom "it would be great" if he told no one about his prior disclosure. It is noteworthy he did not say he was just telling another story or exaggerating his involvement "so don't mention it". I find he did not because he had in fact conveyed the truth.
Summary
179The overheard conversation, Mr. Sona's inquiries of others, the matters set out in the agreed statement of facts and the disclosure in various conversations following May 2, 2011 are all factors that satisfy me well beyond a reasonable doubt that Mr. Sona was involved with the creation and implementation of the scheme to direct voters to the wrong polling station on May 2, 2011. I am also fully satisfied that he did so with the clear intention to prevent or endeavor to prevent an elector from voting at the election held on May 2, 2011. Although the evidence indicates he did not likely act alone, he was a party to the offence and, as noted previously, there will be a finding of guilt registered.
Released: August 14, 2014
Signed: "Justice G.F. Hearn"