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

The charges

by Aaron Wherry on Friday, February 25, 2011 9:38am - 32 Comments

Elections Canada has now issued a short statement, including the official charges.

The charges were officially laid by the Commissioner of Canada Elections William Corbett. More on previous sentences and compliance agreements here.

Tags: campaign financing, Doug Finley, election, elections canada, in-and-out, Irving Gerstein, Michael Donison, Susan Kehoe, William Corbett

More by Aaron Wherry

Stanley F

Big surprise, a Party that condones lying to parliament also cheats during election time. Can this even be considered news?
OriginalEmily1

Anything to win, eh?
Anon 001

So the charges are laid by Public Prosecutions Canada or Elections Canada? The news release says Public Prosecutions has made a decision — what decision?
Tceh

The sad thing is Canadians are getting used to questionable, possibly illegal behavior followed but aggressive pushback and personal attacks from the Conservatives.

Rather than reconsidering where they are going the Cons take Canadian indifference to mean its a green light to repeat the behavior and perhaps do something that pushes the envelope more.

This is not the direction that got them into power in the first place and I hope the strategy leads to their demise.
Mike T.

CPC has very successfully pushed everything up to that 94% grey edge. The law has to prove it's 95% grey.

***

That's up to the courts to decide. The CPC may have gone too far.
tobyornotoby

The Conservatives are being intellectually dishonest at the very least. Even if they manage to wiggle out legally, the intent of the law is clearly to have separate federal and constituency spending limits. So, do the Conservatives accept that on principle or not?

If they accept it, they should be clarifying and strengthening those provisions of the Election Act, so it can't be undone with legal manouevring of the kind we've been treated to thus far.

And if they don't accept the principle, where is the bill to replace that provision with what they actually believe should be the law?

To just continue to interpret the law to thwart that principle is ethically dubious bordering on fraudulent.

Jenn_

And to prove the point, why haven't they instituted a bill that will change the law for non-profits claiming GST rebates, such that it specifically does not apply to political parties? They are the government, they introduce most of the bils.

Mike T.

To be fair, the CPC says the scheme is perfectly OK. They even make statements to try to make it sound like other parties are doing it too. Although to myknowledge other parties haven't been charged and most CPC MPs are careful to use general terms which avoid the specifics of the CPC in-and-out scandal.

This despite the judge saying the CPC scheme clearly violates the intent of the Act.

tedbetts

Really? What cases have been determined based upon the reasonable person?

I can think of some areas of law where the specific conduct of an individual gives rise to a civil lawsuit where there is definitely a "reasonable person" test, especially in business with people in positions of responsibility.

But these are criminal charges, not civil.

Mike T.

Much of tort law is based on the conduct of the reasonable person, stemming from a 19th century English case called Donoghue v. Stevenson. Viewed broadly, reasonable conduct generally may be the most common standard in legal tests!

I am not sure this will be a deciding factor in any nefariousness perpetrated by the CPC, however.

tedbetts

Agree, but tort law or any civil law is not applicable to offenses like this.

http://dougsamu.wordpress.com dougrogers

I'm making a 'soft' point here rather than a hair-splitting 'hard' legal point. I believe most Canadians are reasonable people. The CPC has been playing this obscure and subtle game of fine distinctions to their advantage. I'm saying, with this case, the public sees money being moved around in shady, quasi-legal ways that a reasonable person sees as improper, immoral, and possibly illegal.

What the courts decide is irrelevant. The CPC have ridden this plausibility accusation well for a very long time. What does the reasonable person perceive as the right thing here? That is what will count on election day, not whether the court decides it wasn't illegal.

Mike T.

All true, but "CPC found guilty of election fraud" will be much worse than "CPC innocent of election fraud"
tedbetts

I agree but your comment in fact was about what the courts would determine. Which is why I asked.

Mike T.

Thank you. Since there are penal consequences, look like a certain party wasn't exactly honest when they said "These aren't criminal charges."

Not Stephen Colbert

Well, it might be misleading, but it's probably true that these provisions aren't enacted under the criminal law power, so they'd probably be more accurately described as "quasi-criminal" than as "criminal". A fine distinction, I know, but there are a lot of legal penalties that aren't enacted under the criminal law power (including every penalty enacted by a province).

Of course, if I were facing the possibility of imprisonment, I wouldn't much care about the distinction between "criminal" and "quasi-criminal". (Not that I think there's much chance of anyone going to jail over this.)

Mike T.

Do you mean quasi-criminal in the strict liability sense, or not under hte Criminal Code sense?

Not Stephen Colbert

I mean "quasi-criminal" in the sense of "a prohibition and a penalty, but enacted under a head of power other than the criminal law power." There's clear criminal law that's not part of the Criminal Code (most notably the Controlled Drugs and Substances Act), but a lot of prohibitions and penalties aren't enacted as criminal law. In this case, the provisions are enacted as part of a scheme to administer elections, which is not a criminal law purpose, so in that sense they're (probably) not criminal. But there's a prohibition and a penalty and the usual procedural protections associated with the criminal law, so it's close enough. Hence, "quasi-criminal".

But really, I don't think this level of arcane detail is especially important for the present matter, and I'd rather not get too bogged down in it. It's generally only important for constitutional division of powers issues. Or, I suppose, for trying to avoid saying that you're facing a criminal charge.

Not Stephen Colbert

I only brought it up to point out that when they say "these aren't criminal charges", there's a reading on which that's true.

madeyoulook

The charges: (1&2) WILFULLY SPENT TOO MUCH, and (3&4) KNOWINGLY LIED ABOUT SPENDING TOO MUCH.

No specifics yet, but if this is coming from the in-and-out regional media buy business (and everyone — except the charges themselves — says it is), then Justice Martineau's ruling spanking Elections Canada has prettily packaged a heap of defense evidence for this case:
http://decisions.fct-cf.gc.ca/en/2010/2010fc43/20…

Mike T.

The killer for the CPC is that the cases reaffirms that if a party sells a candidate something, it has to reflect the things's value. Since they were only charging the amount left on the candidate's spending cap to keep below the national cap, it's very likely these charges represent some of the most egregious cases where there's no way the thing transferred is the actual cost, and its clearly designed to be on the candidates bill when its really a national expense.

madeyoulook

It's the ad agency that invoiced, based on the regional media buy. It makes sense the media buy would not exceed a candidate's ability to comply with spending caps. But I like how you would have us see compliance with the caps as some sort of deliberate conspiracy…

Mike T.

Class, can anyone help MYL out here?

charles

The brazen abuse of power by elections Canada is startling. The Federal Court rules their decision on this issue improper. They then appeal, and effectively ignore the orfer of the court without requesting a stay pending the outcome of the appeal.

Elections Canada- apparently above the law.

Mike T.

The case you are referring to makes EXPLICIT reference to the ongoing investigation and possibility of pending criminal proceedings.

Holly Stick

"…The Conservatives, not surprisingly, deny suggestions they broke any laws — criminal or administrative — and they point to their recent victory in court that Elections Canada is now appealing. Less is said of the December 2010 outcome in favour of Elections Canada with respect to the also-related matter of candidates' GST rebates…"
http://www.cbc.ca/news/politics/story/2011/02/25/…
wilson

Wow, 2 posts on charges laid AFTER the Courts cleared the CPC of wrong doing, Mr Wherry,
and NOTHING on the CROP poll, where 61% of Quebecers want a coalition of losers government!.

Ignatieff will have to answer the question sooner or later.

OriginalEmily1

The courts did not clear the Cons.
tedbetts

Make stuff up much Wilson? (Don't answer – we already know the answer)

A lower court ruled that you cannot deny the receipts of the local candidates because they were an in-and-out scam by the federal party if you, Elections Canada, have not even brought charges against the federal party. Until you bring charges, you must pay the receipts.

And now… they have brought the charges for this illegal election cheating scam.
LdKitchenersOwn

charges laid AFTER the Courts cleared the CPC of wrong doing

And this is why it gets confusing when political figures misrepresent the results of court cases. Every Tory commenter seems to think the court already cleared the CPC of this despite the fact that the courts didn't actually do that. The court ruled that Elections Canada can't refuse to reimburse candidates for what they claim are illegal expenses until they charge the officials involved with attempting to expense things illegally. So, now they're doing what the courts told them they had to do to proceed.

The courts didn't rule that the rules hadn't been broken, they ruled that EC can't withhold reimbursements on the basis of the rules being broken before they establish in a court of law that the rules had been broken. So now EC is going to go do that.

madeyoulook

LKO, can I ask you to have a look at my reply to ted here, and offer your thoughts:
http://www2.macleans.ca/2011/02/24/charges-laid/#…

There is an awful lot of meat in Martineau's ruling to suggest that Elections Canada is way out of bounds with its reasoning even on the alleged illegality of in-and-out. I am interested in your thoughts on that.