Categories: Capital Read, Inside the Queensway

NDP kinda-sorta-maybe threatens the media over "possibly illegal" recording?

by kadyomalley on Sunday, November 30, 2008 10:48pm - 53 Comments

Or does this request only refer to the original tape of the conference call? I can’t tell. Anyway, here’s what the party sent out a few minutes ago. (I’m not sure if this applies to the transcript that PMO so helpfully provided earlier today, but I’m trying to find out.)

NOVEMBER 30, 2008

ATTENTION: MEDIA

RE: PHONE TAP OF NDP CAUCUS MEETING

Based on the advice of legal council, the New Democratic Party is sending this note out to members of the media.

******************************************************************************************************************************************************************************************************

Today’s news reports that a member of the Conservative Party intercepted and electronically recorded a private communication restricted to members of the NDP caucus raises serious questions as to whether this activity contravened the Criminal Code of Canada. The caucus meeting was intended to be confidential as were the communications that took place during the meeting. The only intended recipients were the members of the NDP caucus. It appears that the call-in number was inadvertently sent to a Conservative MP.

We have been given legal advice that any reasonable person who was inadvertently given access to the call would have understood that he or she was not invited to listen to the communication or to record it. The continued possession of any such recording may also be an offence under the Criminal Code.

The New Democratic Party would request that anyone in possession of the recording to turn it over to the Office of the Commissioner of the RCMP for use in any subsequent investigation.

For your information the provisions of the Criminal Code are set out below.

Criminal Code

PART VI: INVASION OF PRIVACY

Interception of Communications

s. 183. “private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;

Interception

184. (1) Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Saving provision

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

Tags: coalition government, conference call, creepy, governmentdownbringingwatch 2008, ndpo, yet another tale of the tape

More by kadyomalley

Dale

S***! Gotta remember to close those html tags…. :-P
kenneth

From an alphabetical list of MPs at parl.gc.ca

Allen, Malcolm NDP
Allen, Mike Con

Anybody want to send an email to allenM@parl.gc.ca to see which one answers?
A reader

JFD: “the CP said if a person is invited, as they apparantly were (mistakenly) there is nothing illegal about this”

A conservative MP would *never* be invited to an NDP caucus meeting, and moreover would know this. And moreover would know that it would be considered a violation of the Parliamentary privileges of the NDP members for him/her to read their mail, and phone in to that Caucus meeting. Thus there is zero chance you can make the case that the person might have considered themselves to have been invited. Zero.

To then distribute the transcript from the PMO, inequivocally ties the Prime Minister’s staff to that transgression. I don’t know if the PMO distributed the tape, but I’m sure Kady is on the case.

I do know that someone at Babble already had a good theory on who was the inadvertant recipient of the errant email. It may not even have been the NDP’s fault, if the House of Commons IT staff added the wrong email alias to the email group of NDP caucus members.
Shawn in Montreal

Kenneth, good snooping! If this turns out to be case, you deserve to be on CTV.
Andrew (not Potter or Coyne)

Any other potential pairs like that?
Andrew (not Potter or Coyne)

Oh, and surely the NDP know who the email was sent to in error. In the event of a criminal investigation, I believe the CPC would be obstructing a police investigation if they tried to bury the individual.
Brent Fullard

This notice is a legal formality/necessity, since if the NDP were not to have sent this notice out to the public, then the legal argument could be made by the Harperites that the NDP had tacitly endorsed the caucus conference call ‘s dissemination by taking no action to safeguard themselves from its continued dissemination, thereby significantly weakening the NDP’d case against the Harperites ( an increasingly dwindling number of people soon not to be confused with the Conservative Party under Jim Prentice, or whomever, as leader)

Bottom line: I think you’re safe Kady
Dr Riff

aww poor ndp playing victims..
Andrew (not Potter or Coyne)

Crime, shmime. Conservatives don’t believe in criminal justice.
MacKee

Hooray for the Criminal Code keeping the Cons in line.
Dr Riff

oh i get it… finlay said use all the tools at your disposal and i said it reminded me of the movie “Saw” so here’s the tape and we’re going to play a game!
Nbob

Even though I warned you about the possible illegality of publishing the transcript in a prior post I doubt this applies to the transcript because they have not included the relevant section in the memo ( s.193). In addition, since the party has now talked about the conversation to the press arguably the contents – or the talked about parts – are no longer private (although the actual recording of the conversation probably would still be).

My guess is that this is an attempt to keep the recording itself from being played on TV, radio or blogs

Anyway, I’d still have the people in legal take a look at the transcript and s.193 before you leave it up much longer.
Nbob

Hmm too late – I see The Star has the audio and scripts up on the web. Wonder why the legal brains at the NDP didn’t include s.193. If they wanted to put a chill in the air media wise that would be the section to do it.
Titus

The proper term is “legal counsel,” not “legal council.”
http://craigradcliffe.com Craig Radcliffe

Nbob:

Hmm too late – I see The Star has the audio and scripts up on the web. Wonder why the legal brains at the NDP didn’t include s.193. If they wanted to put a chill in the air media wise that would be the section to do it.

Now why would they want to put a chill in the air media-wise? The way I see it, the leaked info is not at all damaging and its very existence helps to bolster the nefarious-Conservatives-who-must-be-taken-down argument. If the NDP allows the media to continue publishing the leaked transcript, chances are it will be run alongside stories about the potential criminal code violations and what I would assume the NDP would like to think is the Nixon-like machinations over in the PMO.
Michael S

No no no no.

One the PMO let the cat out of the bag who does what is moot outside of copyright ownership. It’s the people who were joyriding with what might be an illegal wiretap that are in deep deep trouble. This is far far more dangerous than one reporter being party to a political power play. An individual doing so is bad enough. It’s when organizations that are regulated under CRTC charters start doing so that things get very dicey. Something tells me that the Bell types are going to have a nasty conference call with the CTV types this morning. Oh. Bell owns CTV. Ouch.

Folks here haven’t even BEGUN to look at CRTC rules regarding telecommunications, although I’m sure that lawyers in Montreal and Ottawa, familiar with Bell, CRTC, and regulatory frameworks, have done so. The telecommunications workers know, because they can’t pull these stunts, and they know it. And while you are at it, remember what Thomas Muclair did for a living before becoming an NDP politician. While the Criminal Code is scary for individuals, an individual is a mere statistic, a corporate entity that is struggling with CPM price compression during a time when it is impossible to get capital without gold bricks in a vault might not want to go into hearings regarding losing its license due to activity of its employees.

Remember that television networks are networks that fall under CRTC. Ultimately, a TV reporter is a telecommunications worker, with all that entails.
Michael S

Again:

Phone call on a BELL network intercepted by a political party and passed on to an employee of BCE who then with the approval of CTV transmits that information on BCE owned CTV and BCE owned Bell TV.

Sometimes media concentration bites in the ass.

Man. I wish I was back in the consulting business.

This is going to buy some suit several Porsche Panameras.
steven

okay, with the holidays coming up, look at it this way…

If my neighbour, who hates me, mistakenly sends me an invitation to come to his annual christmas party, and when I show up one of his friends lets me in, am I guilty of trespassing even though I’m pretty sure the guy didnt want me there in the first place. Of course not.
http://www.johnwaugh.blogspot.com John W

I wonder if the Conservatives have the opposition caucus rooms and other opposition phone lines bugged?
Wascally Wabbit

Don’t worry Kady – the fact that you published the whole unedited tape isn’t in itself bad…
at least I assume it was unedited.
Mr. Poilievre will be eatng his words (deligthful) if we find that the CPC Bots have edited all this…
To change the channel – I loved the Lawrence Martin piece in the Globe this morning…where he quotes Elizabeth May who said – for the debates – there was prior agreement for leaders to bring blank paper to make notes…Harper already had his “crib notes” written out for him on his – does this guy have any principles at all?
Heck – I thought that only minions like Helena Guergis used crib notes during all party debates – because they are so dense…maybe we got a glimse of Harper’s actual IQ there….

As for Poilievre – we have joked about the Conbots forever in these blogs….I swear Poilievre is the real thing – he’s a robot – a tin man! Sheesh!
keith by the Bruce

If RCMP investigators show up to take PMO brand new separate from Government hard drives would CISIS interfere ?
andycanuck

Oh, no, Kady, your socialist brothers are turning on you. But at least if you’re hauled in front of a court over what you published on the electronic pages of Maclean’s, it’ll be in front of a real court with a real judge and not before a HRC like Mark Steyn.
http://www.johnwaugh.blogspot.com John W

Wabbit

There was also his refusal to accept the Your Turn format for the Leaders interviews on CBC the National. He insisted and received a one and one with Mansbridge, a different format than the other leaders had to deal with. The CBC let him get away with it. Mansbridge caved.
Anyway in the end it was on that interview that he talked about a stock buying opportunity on the plunging markets. So it backfired, and helped to put some doubts in sweaterman campaign which up until that time the media had totally promoted as the new Harper.
TobyornotToby

steven … Your Christmas party analogy isn’t complete. Your neighbour sent an invitation addressed to another friend but mistakenly put your address on it. You pretrended to be the other friend (invitation in hand) in order to gain access to his house, and, thereby committed an offence.
L.L./KINGSTON

Kady; This is my virgin post to a forum.
Is this how the cons caucus meeting went, when they were dicussing the economic update?
Harper minion “hey……. how about we eliminate public campain financing….yeh…… they will never vote against that”?