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

'To think that we live in this country in which our government behaves in such a manner'

by Aaron Wherry on Wednesday, March 2, 2011 9:01am - 70 Comments

Jennifer Ditchburn talks to the Conservative candidate who refused to go along with the party’s in-and-out financing.

“It always seemed to me that the in-and-out was irregular and illegal,” Marler said in an interview.”It is gratifying to note that the Federal Court (of Appeal) has come to the same opinion, which always seemed to me to be obvious. I think they’re doing the right thing by prosecuting the alleged offenders.”

More on yesterday’s ruling from the Canadian Press, Star and Citizen. Greg Weston reviews how we got here.

Tags: david marler, election expenses, elections canada, Greg Weston, in-and-out

More by Aaron Wherry

Loraine Lamontagne

I love Marler's quote:

"I put it down to the strength of the party and its ability to create a cult that can cause its followers to do virtually anything that might be asked of them"

wilson

Adscam

Thwim

Yes, that's a perfect example, Wilson. Screaming "adscam" whenever anything comes out that demonstrates the pathetic nature of CPC's adherence to legality.

MostlyCivil

Wilson exists to prove the point. Astounding, really. It's like she exists as both an individual, and as a parody of herself at the same time.

McC_

"all great world-historic facts and personages appear, so to speak, twice… the first time as tragedy, the second time as farce"

OriginalEmily1

My gawd we've found an honest man!

Why hasn't he been given a medal yet?

Otoh….we've come to a pretty pass when it's a novelty to find one!
burlivespipe

The Stephen Harper CONservatives — where 'Just following orders' is deemed a legal defence of anything.
alfanerd

My god. So you're suggesting that EC is like a king or a god, and whenever EC pronounces itself it makes it true? Can EC declare that the sky is red? Holy Jebus, is that such a difficult concept to grasp?

EC has the power to make a determination, that does not mean that this determination will be correct. Like, if somebody is found guilty of a crime, but in reality he's innocent – that's possible too you know.

So, as to whether it's possible for EC to reject a valid expense, do you want to try again?

lgarvin

Can EC declare that the sky is red?

Nope. Outside of their authority.

Like, if somebody is found guilty of a crime, but in reality he's innocent – that's possible too you know.

Yeah, thank god for appeals, eh?

So, as to whether it's possible for EC to reject a valid expense, do you want to try again?

No need. EC determines the validity of the claim. EC can be over-ruled by the courts or – as in this case – they can be affirmed by the courts.

alfanerd

Being told that your decision is "reasonable" is not the same as being told your decision is correct. Thats why they have different standards of review in the first place. Now there are only two – correctness, and reasonableness, but there used to be 4. Just imagine how confused you would have been back then.

lgarvin

LOL

The court affirmed that it is Elections Canada which is empowered to make the determination of what is valid. I think you are just overly sensitive to the word "affirmed" which, I'll confess, I abused in that last instance.

alfanerd

i am sensitive to proper usage of terms, which is why i objected to the word 'valid', and you are correct that you abused 'affirmed' here too.

its not that im a particularly nit-picky person, but rather that in these contexts, different terms carry slightly different meanings and plenty of people are confused already, no need to make it worse.

also, standards of review and admin law in general gets people very confused. if you want to learn more on this topic (and have 2 hours to kill and are capable of reading boring stuff) you should read http://www.canlii.org/en/ca/scc/doc/1998/1998canl…

it's obsolete now but it created the standard of review regime in Canada.
lgarvin

I gotta go make some money but I'll take a look at your reference later.

Not only am I capable of reading boring stuff… I can even write it!
alfanerd

Not only am I capable of reading boring stuff… I can even write it!

good one.

john g

Which 12 CANDIDATES for the Liberal Party engaged in these crimes?

I don't know. The Liberals have been asked many times whose campaigns these fake volunteers worked for, and they've never answered.

Perhaps if there was some kind of regulatory agency that was responsible for ensuring free and fair elections were to conduct a televised raid of Liberal headquarters with the RCMP in tow, we might have these answers. It's too bad we don't have such an agency in Canada. We probably should. Might help prevent things like this from ever happening again.

alfanerd

if there was some kind of regulatory agency that was responsible for ensuring free and fair elections

This should be the subject of AW's "Idea Alert" posts.
Amateur Hour

The only elected MP we know for certain received brown envelopes full of cash is then former PM and sitting MP Brian Mulroney — a Conservative.

Now you have moved the goalposts of my question from "12 Liberal candidates", for whom you offer NO evidence of financial wrongdoing, on to Quebec party fundraisers (again, not candidates), and now to volunteers (also not candidates).

Unless you're actually Bev Oda, I'd like you or Wilson to answer this specific question:

Which 12 CANDIDATES for the Liberal Party were "handed envelopes stuffed with laundered taxpayer cash"?

Patchouli

We're drunk with the power of it all.
alfanerd

Thanks Igarvin, I appreciate the solidarity. But I dont fret much about my thumbs ups or down. In fact, I find that the more actual intelligent content is in a comment, the more thumbs down i get. In fact, because Im widely seen as a conservative supporter, the harper-haters thumb me down without even reading (likely) or understanding (highly likely) what I wrote.

I get by without thumbs up, it's tough, but I manage :)

gottabesaid

After hearing the more popular 'defences' on these boards — that is, 'We're at 43 per cent in the polls' and 'Adscam was worse' — a thoughtful analysis of the situation is very much appreciated. Good job.

frobisher

The whole thread is very enlightening, and excellent points made. One that seems to be missed, however, is the question of whether or not the SCoC will even consider further appeals on a unanimous decision rendered by the FCA. They do, of course, in matters constitutional. But this is, after all, not a constitutional matter, is it? Is it not rare that the highest court would hear appeals post-FCA that are not, in their scope, constitutional? And, if the SCoC did hear it, would the resultant decision therefore become 'legislation by judiciary'?

Just wonderin'. 'Cause there seems like a lot of circles to be squared here.
wilson

And if the CPC loses this case,
67 CPC candidates don't get reimbursed for this advertising expense incurred in the 2006 election campaign.
Which has been the situation for 5 years.

Yes, big big scandal here folks.
Right up there with 12 Liberal candidates handed envelopes stuffed with laundered taxpayer cash.
Of which NO charges have been laid by Elections Canada.

Amateur Hour

"Right up there with 12 Liberal candidates handed envelopes stuffed with laundered taxpayer cash."

Proof? Sources?

john g

How about the 3 Liberals who testified at the Gomery Commission? Despite all of this testimony…not one single charge laid by Elections Canada for violations of election campaign finance laws. Why not?

Michel Béliveau: former director general, Liberal party, Quebec wing
Solicited between $250,000 and $300,000 from Corriveau during 1997 election campaign.
Received between $75,000 and $100,000 cash in an envelope in 1997 from Corriveau. Transaction was never entered in the party's books. "I didn't even ask for a receipt," he told the inquiry.
Admits practice violated election laws.
Takes full responsibility for this "error in judgment."
Says he did not inform Chrétien.
Says he gave the envelope to Benoît Corbeil, his assistant.
Assumes the balance, up to $200,000, was sent to Liberal organizer Marc-Yvan Côté.
Says he did not pocket "one cent" of the money.

Benoît Corbeil: former director general, Liberal party, Quebec wing
Benoît Corbeil
Denied receiving between $75,000 and $100,000 from Michel Béliveau in 1997.
Maintains he only received two cash payments from Béliveau in 1997, one for $5,000 for MP Denis Coderre's Bourassa riding, and $4,000 for Yvon Charbonneau's eastern riding of Anjou-Rivière-des-Prairies.
Confirmed he got $50,000 from Brault through Commando Communications Marketing and $50,000 cash to pay eight Liberal workers during 2000 election.
Corbeil's allegations spur a series of denials from campaign workers, including Daniel Dezainde who testified he never received $3,000 cash.
Claims Gagliano knew about underground fundraising scheme.
Denies pocketing any money for his personal use.

Marc-Yvan Côté: Liberal organizer for eastern Quebec ridings
Confirmed he received $120,000 cash in three instalments from Michel Béliveau to cover the expenses of candidates in 1997 election but no payments for the 2000 election.
Says he took the cash in 1997 and distributed it to election workers.

john g

And let's not forget (from the same link):

Daniel Dezainde: former director general, Liberal Party of Canada, Quebec
Discovered a parallel underground network of funding activities when he took the job in 2001.
Money was not registered in the party's books.
Was introduced to Joe Morselli as the "real boss" of fundraising and Beryl Wajsman, his fundraiser.
Fired Wajsman for unauthorized fundraising on behalf of the party.
Says Gagliano referred him to Morselli or chief of staff, Jean-Marc Bard, for the financial needs of the party.
Was worried about testifying because of previous threat by Morselli.
Says Corriveau told him in 2001 that he set up a kickback system to funnel sponsorship money to the party's Quebec wing.

That enough evidence for you "Amateur Hour"?

burlivespipe

probably because your evidence is lacking. apparently, wishing and shouting is not proof of anything…

burlivespipe

oh and let's not forget who appointed the current head of EC… president of the Josef Stalin fan club (Etobicoke chapter) Steve Harper.

Passing by

I have nothign to say, as I just got the updated PMO list of things Canadians should NOT care about, and the in-and-out court case is on the list, along with Bev Oda, the census, prison costs, and anything to do with parliament or its committees.
John D

It's a relief to have fewer things to care about. On the other hand, what we really care about is elections – i.e. our not wanting one. Until we have one, in which case we will then have wanted it.
alfanerd

This FCA decision did not rule that the in-and-out scheme was illegal – in fact it's just the opposite, in-and-out schemes are clearly legal. The FCA decision merely agreed that Election Canada's decision to refuse refunds was reasonable based on the evidence before it.

The question – which hasnt been decided by any court yet – is whether the expenses claimed by candidates reflected actual benefits received or whether they reflected how much they had left on their individual spending limit.
MostlyCivil

Feb 28th
Prime Minister Harper
"All the courts have ruled in our favour on this issue, and it is important to me that this is respected."

March 2nd,
Alfanerd:
"The question – which hasnt been decided by any court yet…"
alfanerd

what's your point?

as of feb 28th, Harper was correct.

the ultimate question though, the one which determines whether conservatives did something illegal, has not been decided by any court.

you seem to be trying to show some kind of contradiction between my statements and harper's – not that would prove anything regardless, but anyhow, you're doing it wrong – there is no contradiction.
lgarvin

the ultimate question though, the one which determines whether conservatives did something illegal, has not been decided by any court.

But the most recent decision is a little stronger than you're presenting here… The court has ruled that Elections Canada a) has the authority to determine the validity of claimed expenses, and b) has made a reasonable determination in rejecting the disputed claims. The disputed expenses are not hovering around in some legal purgatory. The claims have been denied by Elections Canada, and that denial has been affirmed by the Federal Court of Appeal.
alfanerd

No, sorry, that's incorrect – or at least partially incorrect.

The court has ruled that Elections Canada a) has the authority to determine the validity of claimed expenses

The court has ruled that EC has the authority to examine circumstances around a receipt before issuing a refund – and that EC may reject a refund if it not satisfied with the circumstances. It's a subtle but important distinction with suggesting that EC can "determine the validity of claimed expenses".

b) has made a reasonable determination in rejecting the disputed claims.
You should add "based on the evidence before it", and note that "reasonable" is a lower threshold then "correct".

The claims have been denied by Elections Canada, and that denial has been affirmed by the Federal Court of Appeal.
No. The denial has been deemed reasonable by the FCA. That is a very important distinction. The FCA only examined the decision of EC at the time it was made based on the evidence before it – the FCA did not even try to determine whether the EC decision was the correct one. Go read up on judicial review.

Both the FC and FCA that in-out schemes are a priori legal, the question is whether conservative candidates claimed more (or less) than the fair market value for certain pooled expenses, based on how much room they had left in their spending limit.
tobyornotoby

This kind of hair splitting is what led the Conservatives to do something that was obviously not in the spirit of the law in the first place. The question might be fair market value for pooled expenses if there was any evidence that there was an agreement to pool expenses and pay with individual constituency funds, but that's not what happened. Instead we have fake invoices contrived restrospectively once the national limit was reached. Clearly the Conservatives knew they were overspending the national limit, and they tried to hide that by applying those expenses to constituencies.

Their claims about "how we understood the law at the time" are at best disingenuous. Why would there be separate national and consituency spending limits to begin with unless the intent of the law was to treat them as separate?

The Conservatives spent their time trying to figure out a way to get around that principle, they got caught, and now, instead of trying to undermine the authority of Elections Canada, they should take their medicine and show some respect .
Dan

You are very good at clouding an issue, but what's you actual opinion on this?

If say ten candidates all purchase a regional media buy which covers all their ridings equally, should each of them pay the same amount (i.e. pay the fair market value) or each of them simply pay whatever room is left to them under their respective election spending limits?
lgarvin

It's a subtle but important distinction with suggesting that EC can "determine the validity of claimed expenses".

It is indeed subtle. So subtle, in fact, that these old eyes can't tell the difference. Since we're all in agreement that EC is the deemed authority with the power to accept or reject claimed expenses, I find it strange that you object to the term "validity.' It was the Cons claim, in the original case, that EC didn't have the authority to pass judgement on the expenses claimed. The Appeals Court has just ruled that they [EC] most certainly do have that authority.

Both the FC and FCA [ruled] that in-out schemes are a priori legal,

Incredible, isn't it? The bigger scandal is not what's been done illegally, it's what is done "legally" as a matter of course.
wilson

'Why would there be separate national and consituency spending limits to begin with unless the intent of the law was to treat them as separate?'

And you just made the case for the CPC.
The fact that the national limit was reached has no bearing on advertising money going into ridings with room on there election expenses.
Mike T.

I disagree regarding fair market value (which, it should be noted, both the lower and upper court agreed on, nobody ever said they could get away with claiming amounts not reflective of the amount they received). it's a very important issue, especially when even the lower court noted the "illegitimacy" of in-and-out transfers. but yes, the fake invoices do seem to point at yet another level of disregard for the canadian taxpayer and the democracy in which we live!
alfanerd

This kind of "hair splitting" is simply reading the FCA's decision for what it is. Judicial review is not the same thing as an appeal. That's a crucial point of administrative law.

The question might be fair market value for pooled expenses if there was any evidence that there was an agreement to pool expenses and pay with individual constituency funds, but that's not what happened. Instead we have fake invoices contrived restrospectively once the national limit was reached. Clearly the Conservatives knew they were overspending the national limit, and they tried to hide that by applying those expenses to constituencies.

That's incorrect. The candidates who participated in the program did so knowingly, and although there was no written contract (there should have been), some sort of agreement was in place.

Their claims about "how we understood the law at the time" are at best disingenuous. Why would there be separate national and consituency spending limits to begin with unless the intent of the law was to treat them as separate?

You're betraying your misunderstanding here. There is no question anymore that the advertisements were proper expenses incurred by the candidate. This was decided by the FC and confirmed by the FCA. Read the decisions, because like the liberal hacks (Wherry, Kady O'Maley), you seem to think that because the appeal was allowed, that everything the FC was overturned. That is not the case. The question is fair market value. Dont take my word for it, read the FCA decision.

The Conservatives spent their time trying to figure out a way to get around that principle, they got caught, and now, instead of trying to undermine the authority of Elections Canada, they should take their medicine and show some respect .

No, the conservatives tried to maximize their advertising within the limits of the law – just like anybody tries to maximize their tax return within the limits of the law. The in-out scheme is a legal way to do this. The FC and FCA are quite clear on this. But if the conservative candidates claimed completely bogus numbers which dont reflect the benefit received, then they are in trouble – if the claimed expenses are based at least loosely on reality, they'll be fine.
alfanerd

The FCA already said the following on this point, at paragraph 129 of the decision:

In our view, there are no hard and fast rules applicable to the proper allocation of pooled
election expenses. Indeed, this was recognized by the CEOC in an example cited by the
Respondent. In that case, where pooled advertising was placed in Chinese language newspapers in
the Vancouver area during the 2005-2006 general election, expenses were allocated among
campaigns based upon the level of Chinese language readership in each riding. This demonstrates
that, given an appropriate basis in the relevant facts, pooled election expenses may carry different
values in different ridings so that an unequal sharing of costs is appropriate.

I agree with the FCA that some leeway should be provided for apportioning expenses. I dont think having the cost shared equally is good, nor is complete anarchy – the amount each candidate can claim should be based on some kind of analysis reflecting the benefit received by a particular candidate, but like the FCA, I will not try to say exactly what this analysis should be.
alfanerd

It is indeed subtle. So subtle, in fact, that these old eyes can't tell the difference.

For the purpose of refunding claimed expenses, the EC is the authority which can accept or reject claimed expenses. However, if an expense is rejected, it does not follow that the claimed expense was illegal. That is why I object to the term "validity".

Incredible, isn't it? The bigger scandal is not what's been done illegally, it's what is done "legally" as a matter of course.

No, the conservatives may have done something illegal. Im not sure yet. It depends whether the expenses incurred represented fair market value.
alfanerd

especially when even the lower court noted the "illegitimacy" of in-and-out transfers

It's exactly the opposite. Did you even read the decision? Or are you really that thick? Both the FC and FCA have no issues with in-out aspect of the RMB program.
Thwim

I know full sentences are hard for you.. but you really should try to read to the end of the one you quoted.
Thwim

I remember there being at least one Candidate in Atlantic Canada who came out after the fact and said, "I had no idea this was going on, and I didn't authorize it at all."
Thwim

So you're suggesting that EC rejects valid expenses? Do you know what "valid" means?
lgarvin

"However, if an expense is rejected, it does not follow that the claimed expense was illegal. That is why I object to the term "validity"

It's a distinction without a difference. A valid claim is accepted, and an invalid claim is rejected and Elections Canada is the authority on what's valid and what is not. That was one of the two issues that the Court of Appeals ruled on. It's true that the FAC did not label the claims as "illegal" but I don't think I ever claimed that they did. I merely said that EC found the expenses to be invalid and the Court confirmed that that is their judgement to make.

'Validity' & 'Legality' are not synonyms and I was not using them that way.
alfanerd

I have no idea what you're talking about, but I dont know, you may be right. I've been reading the court decisions, both FC and FCA, and the evidence before them seems to suggest that the expenses were duly authorized by the candidates and that the candidates could accept to participate or not.
alfanerd

No, Im suggesting that it's possible that EC rejects a valid expense. God, I thought nuances was supposed to be the 'strength' of lefties, clearly, that's not the case.

You know, this may come as a shock to you, but sometimes bureaucrats make mistakes. Sometimes, its not even their fault, because they lack the proper facts to make a proper determination.

EC has the authority under the act to reject or accept claimed expenses. Sometimes they'll get it wrong because they dont have a very extensive evidence for each expense.

In this case, based on the evidence before EC at the time the decision to reject expenses was made, EC's decision was "reasonable" (not necessarily correct) according to FCA.

The utlimate validity of the expense (and hence the legality of the whole thing), will be determined by courts, not by EC.
alfanerd

'Validity' & 'Legality' are not synonyms and I was not using them that way.

In this context, they may very well be confused. But even then, there is a difference to this distinction.

EC is the authority to determine whether expenses will be refunded. Courts will not intervene in EC's decision unless EC's decision is unreasonable. That is not the same thing as saying courts will not intervene unless EC's decision is correct.

The standard of review, in these types of decisions, is a crucial element. Here the standard is reasonableness. Hence, the court did not determine that EC's decision was correct, it determined that it was reasonable. You may want to keep thinking that it's a distinction without a difference, but legally speaking, it's not – it's a distinction with a very real difference.
lgarvin

alfanerd – 16 minutes ago "Hence, the court did not determine that EC's decision was correct, it determined that it was reasonable."

lgarvin – 1 Hour ago The court has ruled that Elections Canada a) has the authority to determine the validity of claimed expenses, and b) has made a reasonable determination in rejecting the disputed claims.

Look's like a distinction without a difference to me…
alfanerd

yes, and look at my response to your point b), just below it – i agree with you on that point.

that does not mean that EC is the ultimate arbiter on the validity of a claimed expense.
Mike T.

no.
lgarvin

"that does not mean that EC is the ultimate arbiter on the validity of a claimed expense. "

I think we are going in circles, here. Everything is subject to review by the courts, but it is not only the courts which are able to determine validity. Unless you are suggesting that no decision can be considered valid unless it has been proclaimed valid by the Supreme Court?
Thwim

That is, in fact, what he's suggesting. If a decision is made which alfanerd doesn't like, that decision cannot be claimed to hold any validity until it is affirmed by the supreme court, regardless of the authority of the decision maker in the first place.

He must be a peach to work with.
alfanerd

no that's not what im saying. not everything is subject to review by the courts. not even, the correctness of a decision by EC to refuse to refund election expenses – only the reasonableness of the decision is reviewed by the courts.

what you're confusing are the terms 'valid' and 'approved by Elections Canada'. If you want to equate the two, be my guest, but it's confusing and wrong.
McC_

what? the liberal hacktivist judges on the supreme court don't make valid decisions.
brooster2

As demonstrated by alfanerd throughout the debate on this post, the Cons' defense will be to reduce the issue to mere, obscure, arcane "inside baseball" of limited relevance to the average voter. "Nothing to see here…move along".

And if that doesn't work…Adscam.
MostlyCivil

Congratulations.You've now achieved the coveted "CATS" level of debate.
lgarvin

what you're confusing are the terms 'valid' and 'approved by Elections Canada'. If you want to equate the two, be my guest, but it's confusing and wrong.

Well, one of us has an eccentric understanding of the word, I think we agree on that.
Jan

Alnerd, I appreciate the time and effort you are putting into deflecting from the real issue here. The Gang of Four have been charged with willfully attemptng to game the system. It's the difference between claiming real expenses on income tax returns that aren't eligible, and presenting counterfeit receipts that would be eligible if real. But I know you know that.
Loraine Lamontagne

Of course the big difference between Adscam and this In & Out is that the LPC set up a commission of enquiry into this. In the case of In & Out, the Conservative want to keep us in the dark as long as possible.
alfanerd

No that's not the issue you idiot, go read the freaking decisions before you mouth off platitudes. Or, if you want to live in a bubble of false delusions, read Aaron Wheery.
alfanerd

Thanks. I save this kind of brilliant analysis for the likes of MikeT. You'll note that when Im engaged intelligently I can be courteous, polite and considerate.
alfanerd

by 'inside baseball', you mean the actual issues, which are too complicated for you to understand?
Crit_Reasoning

the Cons' defense will be to reduce the issue to mere, obscure, arcane "inside baseball" of limited relevance to the average voter

I completely agree. The problem for the Liberals is that the Conservatives will be right.

Voters have pretty much tuned out the Liberals' nonstop scandal-mongering. Like a drowning man grasping at a lifeline, the Liberals have clung to lots of not-terribly-important inside-Ottawa stuff that voters don't really care about. The guys who pull the strings at the LPC keep hoping that by amplifying trivial transgressions and flogging them incessantly, they will somehow convince the electorate to pay attention. It's not working.

I agree with Andrew Potter that the Liberals should try to bring the government down at the earliest opportunity. Let the voters decide whether any of this sh*t matters.
brooster2

I suspect that's what the Cons are counting on. Those who don't follow federal politics in any depth will find their eyes glazing over as the government minimizes the issues ("administrative differences") and dwells on the petty details, distracting everyone from the ethical issues involved in laundering their election finances.
alfanerd

well, the cbc, aaron wheery, and other hacks are hoping the issue is seen as equivalent to adscam, for obvious reasons – as in, "dont worry about the details, conservatives did something bad, just take our word for it", trying to obfuscate the fact that the issues really are far more subtle here, and that in fact its so subtle that already a lower court judge and a court of appeal disagree on whether there's something wrong.
…

I understand your point, but object to the use of "trivial". I certainly don't find lying and refusing to answer questions trivial. Also, downplaying everything as a tactic should not be tolerated.
Carry on.
Jan

Totally different case about to start in a few weeks. Guess you'll just have to wait to find out.