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Handwritten notes, in! Blackberries, out! – Not-even-remotely-liveblogging the Federal Court (Part 1)


 

[NOTE TO READER: I tried to stay as close to my original notes in this transcription, although I have included the odd explanatory note – mostly when I couldn’t read my handwriting, or it turned out to be missing nouns, verbs or, in some instances, any semblance of narrative coherence. Unless in quotes, assume all statements are paraphrased, although I tried to be as accurate as possible, and finally the timestamps are wildly approximate. Y’all, I am lost without my BlackBerry shortcuts – how I’ve missed you, LT.]

 

PART 1- Michel Decary for the Conservatives – Let my affidavits go! Or, in this case, come in! 

9:30 a.m
Michel Decary, attorney for Callaghan, Pallet et al (applicants) begins by explaining that this motion is to allow additional affidavits, after which he has a few words to say about the schedule.
There are four conditions on which the motion should be granted, but he’ll begin by showing that there was evidence that was not available prior to the cross-examination of Janice Vezina [executive director of electoral financing at Elections Canada]. The applicants [former official agents L. G. Callaghan (AKA Gerry) and David Pallet] were “never made aware” of the new test on what constitutes a candidate expense.

He’s a little nervous – not exactly Clarence Darrow – but considering he’s relatively new to this case, that’s not surprising. Meanwhile, Barbara McIsaac, who has represented Elections Canada from the beginning, is quietly making notes. He’s wearing a nondescript suit with an unexpectedly ornate purple tie; she is in a sensible blue pantsuit and comfortable-looking sandals.

He explains how the in and out system worked,  from the party’s perspective: parties can transfer funds – money in – which may be used on election expenses – money out. In … out. Memories of Poilievres Past. Yes, the ad in question was a party ad, not a candidate ad, but the question is who incurred the expense.

9:45 a.m.

As he speaks, Decary is starting to shift his weight from one foot to the other in a hypnotic, if subtle rocking motion. Meanwhile, the prothonotary is watching impassively, her chin resting on one hand, but tipped to the side to demonstrate alertness; she is also holding a yellow highlighter. 

It becomes clear that Decary has gotten lost in the shuffle of papers and rhetoric; he’s flipping furiously through the case binder, as is the prothonotary – Mireille Tibab – and opposing counsel, and the person sitting next to me – who turns out to be Francois Bernier, director of legal services for Elections Canada, who appeared beside Marc Mayrand during last week’s Ethics hearing. I’m the only person in the room without a binder through which to flip. 

And now, onto the crux of his argument, which also hearkens back to last week’s meeting: the “updated” version of the 2007 Elections Canada manual/handbook for candidates, which removes the words “party” and “leader” from the explanation on advertising expenses. “We can go through all these years,” Decary begins, but Tabib interrupts him, saying “I don’t think we need to do that.” Decary obliges, and notes that, when making his decision on the rebates, the Chief Electoral Officer “concluded that hte ad did not promote the candidate,” but made no mention of the “deletion” of those two words. 

Tabib points out that the Donald affidavit, which was filed much earlier in the case, referred to the change, but Decary argues that they didn’t realize the “new” rule was applied retroactively to the 2006 election. Tabib is still sceptical, and again suggests that it is the Chief Electoral Officer’s interpretation of rule in question – Rule 407, to be precise – has been an issue throughout the case. But why would Donald mention it if it wasn’t already on the record, Tabib asks again, to which Decary explains that Donald was just there to explain the practice itself, as an accountant – he didn’t realize that the “new” definition had been used in analysing the 2005/2006 expenses.

“We had no knowledge until the cross examination,” he maintains, at which point Vezina, he claims, admitted that, while the advertising must “directly promote the candidate,” the party could decide to promote the candidate, and that would be allowed. That makes this a new test, according to Decary, and to meet that new test, he wants to add new affidavits saying that the candidates approved the expenses, and approved promoting the party over the candidate. 

According to Decary, during crossexamination, Vezina admitted that a candidate who was an “absolute nobody” could decide to promote the party, or the leader, in order to ultimately promote his own election. “We’d never heard this,” he insists. Tabib points out that the excerpts he has read into the record from the Vezina deposition are, in almost all cases, his own questions – what were the answers? Decary sort of dances around that point, and admits that, if it had been a straight “yes” or “no,” they probably wouldn’t still be in court — and that, in turn, makes Tabib wonder how, in that case, this constitutes a reason to introduce further evidence, since it’s fundamentally the same issue that they’ve been arguing since the beginning.  Decary suggests that it could lead to more evidence – or the resubmission of old evidence, like the mound that Tabib rejected earlier this year to bolster the now largely discredited “Everybody else does it” defence. 

10:05 a.m. 

Decary, who keeps promising that he’s almost finished with his argument, acknowledges that “the other side” – i.e. Elections Canada – will argue that it was the party that controlled the money and the content, so it was a “party ad,” but even so, parties can transfer money – as much as they want – provided that the candidates don’t spend over their respective limits. But in this case, Elections Canada saw the transfers and wen, “HA-hah. This is very suspicious,” and proceeded to investigate further. 

Tabib wonders if Vezina, or anyone else, has suggested that Elections Canada relied on the manual instead of the legislation itself in its interpretation of the law – the Elections Act, she reminds Decary, has not changed since 2007, and Vezina never stated that she was using the handbook instead of the Act — those were Decary’s questions, and his construct, but did she ever say that? Decary claims that she does, and once again flips through the transcript, but doesn’t find the quote he needs. “I understand what you’re saying,” he tells the prothonotary, “I’ll find it, and I’ll prove it.” He then returns to the question of subjective versus objective interpretation, and calls this a “subjective test.” 

(At one point, Decary forced to admit that it was actually McIsaac who submitted the latest affidavits, as he wasn’t aware that it was necessary, which is what happens when you take over a case so late in the pre-trial phase.)

10:15 a.m. 

Tabib suggests that this whole theory is designed to boost the applicants’ case – which is apparently not enough to allow it to be added as evidence – and wonders how it changes the context as far as ridings that didn’t have candidates at the time that the money was transferred, especially considering that Elections Canada will argue that the interpretation requires the full context — all the transfers, and all the ridings, not just case-by-case scenarios. Decary maintains that the evidence in the affidavits “could possibly be both relevant and crucial,” but Tabib admits that she is wondering whether it was also relevant and crucial before now. “A lot of people vote for a party rather than a candidate,” she points out. Wouldn’t this have occurred to the applicants before now? 

Decary, who is now unconsciously wielding his binder as a sort of shield, says that the court may agree with the “new interpretation” – in which case this new argument may become crucial. Is that not the basis for the review itself, though, Tabib muses.  If it goes before a judge, Decary says, the court may conclude that the applicants should have made this proof beforehand, which prompts a brief tangent over the purpose of judicial review — it isn’t to render the opposite decision, but to decide if the original decision was made in a proper manner. 

Moving on, Tabib observes that the argument being stressed by the applicants is that the official agents were aware of the expense, but the only evidence of that comes from Dave Pallet, one of the two applicants. What about the rest? On that logic, she suggests that perhaps only the key salient paragraphs from the affidavits should be accepted – the first paragraph, in which the agent says who he is, and that he agreed that the campaign should participate in the media buy. Even so, though, this point has been part of the controversy since the very beginning of the judicial review — is this just a way to “bootstrap” new evidence that bolsters what is already there? No, no, insists Decary — it is to provide context. “I think a judge would want to know about this,” he concludes, and that is why it should be allowed — there is no risk of prejudice, and it doesn’t madd to the material on the record. “It just adds context.” 

10:30 a.m.

“And there will be cross-examination, of course,” Tabib doesn’t really so much ask as state as fact. “Of course!” Decary agrees. Cross-examination, and whatever else flows from the affidavits. 

With that, the court takes its regular morning recess – a 10 minute break for BlackBerries, Red Bull and frantic blog updates.


 

Handwritten notes, in! Blackberries, out! – Not-even-remotely-liveblogging the Federal Court (Part 1)

  1. any bow ties?

  2. Are the Conservatives — Lepsoe, by the sound of it, left to protect his legal career — trying to delay this thing past whenever or actually trying to win this case? Doesn’t sound like it’s the latter.

    [Btw, Nice handwriting. Get someone from Macleans who knows shorthand next time, or steal the transcripts from the court steno :-)]

  3. My question is, did the Conservative Party ever phone or write or email Elections Canada and say, so, we’re thinking this Rule 407 means we can shift money and expenses around, what’s your interpretation?

    And speaking of creative financing was the rule named for the private toll highway in Ontario?

  4. “My question is, did the Conservative Party ever phone or write or email Elections…”

    In a separate but related matter the Elections Commisioner submitted in affidavit a document in which officials of the CPC made a point of NOT doing precisely that.

  5. You look tired. And Wells said Red Bull sucks. Is that true?

    (I used to drink Red Bull beer, which was a good 7%, but I suppose that’s not the same stuff)

  6. “Vezina admitted that a candidate who was an “absolute nobody” could decide to promote the party, or the leader, in order to ultimately promote his own election.”

    Wow. Buckingham Palace was less removed from reality when Diana died.

    Everybody knows that how people vote has very little to do with the local candidates, even “star” candidates, and hence most candidates are, essentially, “nobodies.” Everybody except Elections Canada, apparently.

  7. Corporate culture (and corporatist culture in particular) has a rather charming way of shining through under pressure. Decary managed to slap a lot of faces with that line of questioning (67 for now, isn’t it?). Its a good thing the CPC backbench is probably too busy memorizing its lines to have noticed. That way its being the price of missing the point is probably of little or no consequence.

  8. Gosh your handwriting is so neat…it’s almost font-like!

  9. font-like?

    “sans blackberry”?

  10. Kady,

    We discussed in the comments in a previous post about the whole “national vs local” ads topic. I think we agreed that it wasn’t relevant w.r.t the possible overspending of the Tories on the national campaign.

    But this is different, no? This is about Elections Canada refusing to reimburse the Tories because they are claiming that the ads are national, not local.

    But isn’t section 407-1, and the 2006 EC handbook clear? The ads can legitimately be for a candidate, leader, or party. Correct? Is EC really trying to get away with using the revised 2007 handbook as a basis for judging the 2006 election expenses???

    I’m having a hard time understanding how this is not a slam-dunk case for the Tories.

  11. John G. – In a word, no; this is not remotely a “slam dunk” case for the Tories. The manual is not the law. The Elections Act is the law. If there is any apparent inconsistency between the manual and the law, the law prevails, which is why the manual advises parties to contact Elections Canada should there be any question as to the legality of a particular practice.

    The law in question – 401 – *is*, in fact, “awkwardly worded,” but the interpretation is, ultimately, the job of the Chief Electoral Officer and Elections Canada. During last week’s hearings, he laid out the reasons behind the decision to refuse the rebate requests; the content of the ad was not a factor.

    Even if the Conservative candidates/agents/party were to claim that they had relied on the manual rather than the Act, that would only go to determining whether or not a violation of the Act was deliberate, or inadvertent. In other words, the Conservative candidates would have to acknowledge having broken the rules, and then use that as an explanation/defence. That defence may still come up, depending on whether the Commissioner of Elections decides to recommend charges be laid under the Elections Act, but would not negate the initial ruling by Elections Canada to disallow the expense claims.

    I’m still working my way through yesterday’s notes – I won’t be handwriting a liveblog again anytime soon, I can tell y’all that much. When that goes up, it should provide a bit more background on Elections Canada’s position vis a vis the updates to the manual.

  12. Gretsch – Oh, that was from the beginning of the hearing. I’ll take a picture of the last page, and you’ll see how spectacularly it degenerated over the course of just three hours.

  13. Kady,

    Thanks for the explanation. But then why is anybody talking about the changes in the 2007 EC Handbook? Or even talking about the 2006 EC Handbook for that matter?

    I understand the Conservatives wanting to bring up the change in the handbook; why is the handbook not being dismissed out of hand as being completely irrelevant to legal proceedings?

  14. “This is about Elections Canada refusing to reimburse the Tories because they are claiming that the ads are national, not local.”

    wrong.

    Elections Canada is refusing to reimburse the Tories because the cost of the ads was INCURRED nationally, not locally.

  15. Well, the case hasn’t yet been heard, so at the moment, it’s still on the table as possible evidence to present to the court. It may, ultimately, be dismissed out of hand by the Federal Court — or, depending on the results of the Commissioner’s investigation, in a future trial over alleged violations of the Elections Act.

  16. “Elections Canada is refusing to reimburse the Tories because the cost of the ads was INCURRED nationally, not locally.”

    And if that seems like an iffy area, check the paper flow (empty bankwire and no contract) and ask yourself who would be left holding the bag if the riding decided to stiff head office.

  17. I would like to indulge in re-posting an observation from a previoous string –

    “This notion that you are “broadcasting” is not only sexist, it seems wrong. You aren’t holding a microphone or videorecorder and sending it out over the airwaves. You are transcribing into your own words and context the proceedings of the court.

    What’s the diff between hitting “send” every once and a while, and running out to the phone and shouting “Get me re-write!” (or whatever it is those crazy dames used to shout)?”

    Have you asked for a reasoned explanation for how they interpret ‘broadcasting’ vis a vis your reporting on a live story?

  18. You know, I haven’t, actually – and I do plan on bringing it up, because what you say is entirely true. I’d also be willing to not *post* anything until after the hearing was over (or in recess) provided I could use my berry to take notes, although as you point out, that’s really no different than a reporter running back and forth from the courtroom to the hallway to file updates. (Cameras, of course, are different, since they’re large and unwieldy, and it could be argued that they can disrupt the proceeding, as opposed to the nearly imperceptible clicks of a berrykeyboard.) I’ll keep you posted, though – free the RIM one!

  19. Kady: If you have a moment, could you summarize the importance of the NDP transaction in BC that Mr. Poilievre brought up when Mr. Mayrand spoke to the committee? I will go through your blogs to find out more, but if you have a moment…..

  20. Elections Canada has “communications folks in BC”?

  21. I still dont understand how the majority of people who have never experienced a campaign can openly criticize the regulations. They are quite distinct, costs that you wish to apply to the 60% reimbursement must be for the local candidate and be justified with direct invoices with respective proof of ads justified with either local content and or a specific candidate tag, therefore if you wish to use a national radio ad for example you can but the broadcaster must mention the specific candidate in question. These ads were generic, non-local and contained no local references. In addition in Qc for example, Verner and Cannon who appeared in tv ads and cited specifically in local radio ads running from Qc city to the Outaouis were charged 10k by the party versus regional candidates who did not appear and were not referenced who were transfered 48k on Tuesday for example and then billed for Conservative Party “transfer note” (instructed to be submitted under publicity category) on Thursday! It stinks its simply a how do we bump up the local candidates to max the billing and get the taxpayers to send 60% back to mother HQ scam! Please feel free to visit the finance section of Elections.ca its all there plus see the numerous associations that did receive their rebate in July 2006 of controversial in and out funding only to send out to other associations. This money has gone everywhere in Canada such that even ridings that didnt participate in the 67 have sent it to the other 200 plus riding associations to market the CONS all over again on taxpayers dollars!

  22. Two points:

    1. The relevance and admissibility of any evidence will not be determined until the hearing of the application for judicial review, so there’s no problem putting in evidence about the manual (subject to the rules about serving additional affidavits after cross-examinations, which is what this motion was all about, I gather).

    Besides the issue Kady pointed out about what the candidates knew/intended, a court or tribunal interpreting a statute may consider evidence of how an administrative body tasked with applying/enforcing that statute has interpreted it, but the court/tribunal is not bound by the admin body’s interpretation. This comes up a fair bit in the securities, competition and tax areas. Conceivably, it could come up in electoral law, and so the court could ultimately take into account the manual when interpreting the Elections Act. But I doubt it, especially if Elections Canada has since abandoned its original interpretation.

    2. I’m not sure the issue with Blackberry liveblogging in courts is that it is broadcasting. The issue is that it’s a Blackberry.

    In most courts I’ve ever been in, Blackberries and cell phones must be turned off. Even vibrate is not permitted. The rationale is that the ringing/vibrating will disturb the court and counsel.

    However, most courts will not object to a laptop. You will often see junior lawyers and articling students, either at the counsel table or in the gallery, using laptops to take notes.

    Yes, I acknowledge that a Blackberry used to liveblog is more like a laptop than a cell phone, but the courts have essentially unlimited discretion to decide what is and what is not permitted in a courtroom. That discretion includes the discretion to be internally inconsistent. Object all you want; no one will care, if they even understand.

    Anyway, Kady, I suggest you get a laptop for any future attendances at court. If you can rig your ‘berry as a cellular modem, you could even post updates during the breaks.

  23. “…and so the court could ultimately take into account the manual when interpreting the Elections Act. But I doubt it…”

    but only, I believe, if the issue is not addressed in the law itself, as in…

    “This handbook is designed to help candidates and their official agents comply with the Canada Elections Act. It is addressed primarily to the official agent, who should use it as a tool in administering the candidate’s campaign. It does not take precedence over the legislation, and you should read it in conjunction with the Act.”

    http://www.elections.ca/content.asp?section=pol&document=intro&dir=can/EC20190&lang=e&anchor=a1_1&textonly=false#a1_1

    so I doubt it too but hey, if that’s the horse they want to ride in on they’re welcome to it. If I were defending EC in pretrial (not that I have the expertise), I’d let it slide, too. Its going to hearing anyways.

  24. Part II! Part II! Part II!

  25. Hi Kady,
    I hear Paradis and Bernier are in trouble now with EC.
    What happened to the original lawyer for the CONS, before Decary? fighting the Liberal dominated everything!!! Is he helping the Boss with the Cadman Affair?
    Also, Where is Part II?
    thanks,
    Lynne

  26. I am *so* sorry for taking so long with the second part — having incredibly strange internet issues here. It’s up now, at least, and I’ll do my best to respond to comments, although I only seem to be able to reach the site one time in twenty, which is – just inexplicable. I’ll be posting about the latest in and out subscandal – which I have officially named the Conservative Green Shift – as well.

  27. “Even if the Conservative candidates/agents/party were to claim that they had relied on the manual rather than the Act, that would only go to determining whether or not a violation of the Act was deliberate, or inadvertent.”

    Generally, in accounting law, one is expected to be aware of differences between non-legally binding manuals & informational bulletins & the law. Manuals are usually sufficient for small organizations/businesses & simple transactions. Larger organizations are expected to hire or consult specialists in the law who are aware of the shortfalls of the manuals.

    The manuals may be good general guides for individual riding associations, but a national party would be expected to have experts in election financing laws whose knowledge extends far beyond what is in the guides. In grey areas, the riding associations should consult the experts. If improper transactions occurred consistently across a large number of ridings, it would be likely because of bad advice from the national organization. The bad advice could be either intentional or accidental.

    If the ruling party of Canada, which is essentially country’s lawmaking body, wants to claim that they relied on a non-binding layman’s manual instead of a legal statute . . . It may be a mitigating factor in a court of law, but it isn’t exactly confidence-inspiring. Sort of explains Bills C-10 & C-61.

    In accounting/financial issues, there’s always some standard procedures that violate written laws but are tolerated, either because the law is unclear, the violation is insignificant, or the regulatory body has just never bothered to enforce it. (Think income trusts. Under written law, no such creature ever existed.) A mistaken belief that something is common practice is proof of negligence, not innocence. I’ve volunteered at a federal riding for a much smaller party, and the local treasurer was very aware of inter-association transfer rules, and seemed to expect that any violation of such rules would be caught, if not by EC, then by another party.

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