Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

In-and-Out is in?

by Aaron Wherry on Monday, January 18, 2010 12:28pm - 129 Comments

A Federal Court judge rules in favour of the Conservative side, with a caveat of sorts.

Elections Canada had contended that the Conservatives effectively skated around the party’s $18.3 million spending limit by channeling the cost of the ads through its candidates’ campaigns, which have their own spending limits. There was no evidence, the electoral agency argued, that the expenses were legitimately incurred by the candidates.

In a ruling released Monday, Justice Luc Martineau disagreed, saying the two candidates did incur the expenses. He ordered Mayrand to approve the claims. Martineau said, however, that the decision does not necessarily bear on an investigation of the ad buying program currently being conducted by the Commissioner of Canada Elections, William Corbett.

“There is a fundamental distinction between legality and legitimacy,” Martineau wrote. “As far as the overall legitimacy of the (regional-media buy) program is concerned, this is a debatable issue, which is better left for public commentary and debate by all interested persons outside the courts.”

Tags: advertising, campaign, campaign spending, election, elections canada, expenses, federal court, in-and-out, Justice Luc Martineau, marc mayrand, William Corbett

More by Aaron Wherry

Rolf

So the scandal is about the CPC using their own money to buy their own ads, and then get reimbursed by elections Canada after following the letter of the law the liberal party wrote. So what is the problem? The CPC has not stolen money, they used existing laws to their advantage.

gar

Rolf: Next we will hear the left saying that the least they could have done was donate some money to the welfare of the Afghan detainee so he could immigrate to Canada and represent a Liberal riding and bear witness to the torture our troops committed by turning him over to his own people and he was hit with a shoe..They will all be marching in the streets on Jan 23 and myself and some of my friends expect to go out and "jeer" them on.

http://intensedebate.com/people/DuffConacher DuffConacher

The Federal Court ruling today dodged the issue of the legality of the Conservatives' 2006 federal election ad spending scheme issue even more than Aaron hints at, as the ruling went in favour of the candidates only because the basis of the "balance of convenience" principle means that they should be reimbursed for their full expenses now because the legality of the scheme is yet to be determined.

So, in order to have the issue of the legality of the scheme ruled upon by the courts, Elections Canada must proceed with a prosecution through the Director of Public Prosecutions, and/or an appeal of today's ruling to the Federal Court of Appeal.

In the meantime, based on this ruling and to save court resources, Elections Canada should reimburse all expenses to all the candidates who participated in the scheme (again, while at the same time prosecuting them all).

It is in the public interest to have the legality of the scheme ruled upon by the courts so that everyone will know what is legal for the next, and future, federal elections, so hopefully Elections Canada will appeal and/or proceed with a prosecution.

Hope this helps.

Duff Conacher, Coordinator
Democracy Watch

http://intensedebate.com/people/s_c_f s_c_f

"He said the two candidates did incur the expenses as defined by the elections law and ordered Mayrand to approve the claims. "

What part of that do you not understand?

Richard

I've never in my life agreed with anything written by Duff Conacher.

But his comment above is right. Just because the federal court found that the two candidates did incur the expenses, doesn't preclude those expenses from being a violation of the Elections Act. Read the judgment. It's longer than that one quote.

Basically, until Elections Canada proves that the expenses were illegitimate, they have no right to withhold the candidates refunds for those expenses. That's all that was decided today.

MikeR

Except for the analysis that the court uses that clearly indicates why the interpretation of the Act by Elections Canada is simply wrong. This is not a "balance of convenience" decision. The court has not ruled on the criminality of the actions because the issue was not before it. It did give a clear indication that the general purpose of the Tory plan fell within the scope of what is allowed by the Act.

Mr. Conacher's argument that people should be prosecuted simply for having a difference of opinion on the interpretation of a complex statute is a pretty good example of why it is hard to find people who want to run for offie these days. People like Mr. Conacher play into the notion that anyone running for office must be presumed to be a prospective criminal and anyone who disagrees with his interpretation of the Elections Act must be venal or a fool.

Rather than enhancing democracy, as he purports to do, Mr. Conacher seems intent on undermining it.

http://intensedebate.com/people/s_c_f s_c_f

I agree completely. Trying to skew the rules in order to invalidate an election is not a support of democracy, it is an attack on democracy.
Richard

I agree with your assessment of the general work of Democracy Watch. It's bang on.

But to suggest that this ruling legitimizes the actions of these Tory candidates and their agents is reading far too much into this decision. If you can suggest a means of getting a judicial interpretation of the Act without laying charges, then by all means. But as I see it, Conacher is correct in this instance. The campaigns involved violated the spirit and quite possibly the letter of the law. It's in the public interest, for a whole host of reasons, to settle that question.

http://intensedebate.com/people/Jenn_ Jenn_

Okay, so the "out" part of the in-and-out scheme was legal. I suspect the "in" part could be found legal as well. It is when the two are put together that a problem arises–sort of like money laundering. No-one would suggest that depositing money into a bank is illegal, right?

But the in-and-out is still a problem, as referenced here, "Martineau also said the costs claimed by the candidates must be shared evenly between the campaigns that participated, and not based on how much extra room each campaign had bellow its spending cap, as the Tories appeared to have done."

The real, actual problem as I see it was brought home to me when I misread Mike R's comment above. I read, "It is a national decision for a candidate to contribute to a national buy, rather than run off a bunch of brochures urging people to "Vote for Biggins".

http://intensedebate.com/people/ChrisInKW ChrisInKW

Anything that de-emphasizes the role of Members of Parliament to represent the will and the interests of their constituents is going the wrong way. Why everyone so casually dismisses this as a frivolous notion, that "people just vote for the party" and that members mean very little in the grand scheme are obstacles to democracy. Witting or unwitting, they are the mold that feeds upon our Parliament and threaten to reduce it to a pile of mush, with Langevin towering over all.

MikeR

Then don't vote for the candidate who doeesn't give you a brochure on local issues, or doesn't attend all candidate's meetings , or uses whatever other metric you want to decide on who to vote for. But isn't that your privilege now? And do you really need legislation to insist that your neighbour makees his or her decision on the same basis that you do ? Is democracy really enhanced if the Chief Electoral Officer is given the right to censor political ads if they don't serve the purposes he or she (or you) thinks they should?

Reader

Woolly thinking — arguing legality then ignoring it.

http://intensedebate.com/people/s_c_f s_c_f

If Biggins thinks he'll get your vote by telling you more about himself, that is exactly what he'll do. I don't see how this has anything to do with the 'in and out' affair.
tono-bungay

If the cost should be shared evenly and these candidates legitimately participated in a mandatory national buy, then maybe Elections Canada should now prosecute all the other candidates who did not contribute to its cost for having received an undeclared contribution or for going over their spending limit because of the fair value of that benefit that has now been established.

http://intensedebate.com/people/robert_mccl6309 Robert McClelland

So I guess that's it for local campaigns. The ridings will just hand over all their dough at the start of an election in order to buy into one big national campaign. Thanks Mr. Harper, democracy loses again.

wilson

Yah, those undemocratic COURTS…
Mike R

Well, if parliament doesn't like it, parliament can change the rules. In reality, of course, as every candidate for office knows, people vote overwhelmingly for the party and leader in national elections. It is a rational decision for a candidate to contribute to a national buy, rather than run off a bunch of brochures urging people to "Vote for Biggins". The court has sensibly pointed out that the rules allow what was done and it is not the job of the Chief Elections Officer to second-guess how candidates spend their money.
http://intensedebate.com/people/Thwim Thwim

Hardly. This is a procedural affair. Elections Canada held back the refunds from two candidates while the commissioner investigates. The Courts have simply come in and said, "No, you can't do that. You have to give them the money unless and until the investigation finds otherwise. If that happens, THEN they have to return it."

http://intensedebate.com/people/jolyon jolyon

I wonder how long it will take shrill liberal partisans to remove in/out from their Harper is evil screed we read hear at least once a week.

http://intensedebate.com/people/Dennis_F Dennis_F

and it was always referred to as a "scheme" or a "scandal" too.
http://intensedebate.com/people/LynnTO LynnTO

Probably about as long as it will take Conservatives to remove adscam from their "Liberals are evil" screed.

http://intensedebate.com/people/Dennis_F Dennis_F

Odd comparison, since the Conservatives have essentially been vindicated of wrongdoing here, while the Liberals were implicated in a public inquiry.
http://intensedebate.com/people/jolyon jolyon

adscam actually happened, though. In/out 'scandal' was just in feverish liberal minds.

http://intensedebate.com/people/Thwim Thwim

Unproven. All that's been shown is that Elections Canada must refund the candiates as it's said until it's actually proven that the legislation was violated.

http://intensedebate.com/people/s_c_f s_c_f

Clearly you cannot read.

http://intensedebate.com/people/Dennis_F Dennis_F

Oh, and by the way, I would suggest that, even though this might not be specifically true in your case, generally speaking, I believe it's this kind of thinking that has not served Liberals well at all since they lost power. I don't think they've ever taken genuine responsibility for the many scandals on their watch. So, in return, they've tried to make every single controversy under the Harper government into some kind of scandal.

And the tragedy has been that the kind of opposition it's led to has not served Canadians well. I think it's been desperate and completely self-serving, and a large part of Harper's continuing success.

http://intensedebate.com/people/LynnTO LynnTO

Well, I was just being flippant, mostly because of the number of individuals here and elsewhere who've attempted to justify every Conservative controversy with "someone else did it first," which is a dangerous attitude toward governance. The point I think the judge was trying to make – and which I most certainly agree with – is that something may be legal, but legality does not morality make. It's up to Canadians to debate and conclude whether what happened was a legitimate campaign, or if it smells of bad fish.

Certainly not the best comparison, I agree with you. But in terms of living memory? It could well be apt. As for it "happening" – well, both In/Out and Adscam happened, in the most literal sense of the word. The latter was judged not legal.

On the Liberal 'tude, I don't like it much either – but let's face it, the opposition's job is to oppose, and hold the government to account. They haven't done an excellent job of it, but in making waves about every controversy, they've made some (possibly misguided, and definitely ineffective) attempt at forcing accountability. On the flip side, a government that obfuscates and flings mud at anyone who has something negative to say about them isn't a whole lot better, either. I say the whole lot needs a change.

http://intensedebate.com/people/Dennis_F Dennis_F

Well, I think some people may be reading too much into what the judge said. As in many decisions, they outline what issues they deal with, and what issues they don't deal with. In this case, I don't think the judge was suggesting one thing or another as it relates to "legitimacy", just that it's not something he's supposed to consider in a court of law.

http://intensedebate.com/people/LynnTO LynnTO

Well that's just it – he alone can't (and won't, thankfully) pass judgement on legitimacy. But that shouldn't stop we Canucks from having that debate.

So, until it's deemed otherwise, In/Out shouldn't preclude EC from refunding the candidates in question. But was the In/Out process legitimate? That's still up for debate.

Richard

My favourite part of the judgment reads as follows:

"…there is a concurrent criminal investigation underway that might result in charges under the Act being laid against the Party, the Fund or individuals…"

Indeed.
http://intensedebate.com/people/Dennis_F Dennis_F

Wow, the witch hunt never ends for some, does it?
Richard

Just because you have a decision saying that yes, the witch bought her own broom, doesn't really get to the matter of whether or not she's a witch.