July 24, 2008 UPDATE: Motion denied. Good thing I didn’t bet money on it, huh?
[NOTE TO READER: Once again, I have tried to stay as close to my original notes, although as the afternoon went on, my handwriting became distinctly more — impressionistic, shall we say. Just a reminder – unless in quotes, assume all statements are paraphrased, although I tried to be as accurate as possible, and finally the timestamps are wildly approximate, although I apparently just gave up looking at the clock during the second half of the hearing.]
Part 2 – Barbara McIsaac for the Chief Electoral Officer – Nice motion you got there. It’d be e a shame if anyone introduced the Commissioner of Elections’ search warrant application in response.
After a ten minute break, during which time I discovered that two of the three other people in the courtroom read last week’s liveblogging of the Ethics committee, we’re back in session.
It’s now time for Barbara McIsaac, lawyer for Elections Canada and wearer of quintessentially sensible sandals, to lay out her opposition to the motion — which, if you’ve forgotten by now (and I don’t blame you if you have) would allow Callaghan and Pallet, the former Conservative agents in whose name the application for judicial review is going forward – to introduce as evidence two new affidavits. Which, according to McIsaac, should not be allowed, as they deal with issues that were already known; it’s up to the applicants to put their “best case forward” from the beginning. In other words, you snooze, you lose.
The applicant, she argues, is “essentially splitting their case,” which would needlessly prolong the process. It would be better, she suggests, for all concerned – the parties involved and the public – to “get it over with” sooner rather than later.
The wording of the manual, she says, has always tracked Rule 407 – “which is, admittedly, unfortunately worded.” But the last revision to the text of the handbook was made in 2007, and was necessary to deal with the changes brought in by the Conservatives’ own Federal Accountability Act. When the handbook is revised, Elections Canada always looks to other areas that could be revised, but that would not have directed its interpretation of the expenses from the 2006 election. As Vezina herself said under cross examination, it would have had “no impact.”
But what does that mean, wonders Tabib. In her written submission, Vezina – who, just as a reminder, is the director of political financing at Elections Canada – wrote that it reflects existing interpretation – which hasn’t changed.
McIsaac makes an interesting point — the whole question of the manual, and the change in wording could, in fact, go to intent, which would affect whether charges would be laid under the Elections Act. But there is no indication that the section was applied differently in 2007 than in previous years.
Tabib confesses that she’s still not completely clear on what Elections Canada’s position will be on Rule 407, and McIsaac explains that the Desarmeaux (which I’ve spelled phonetically) states that, to the extent that it is relevant, the rule must be read as follows: An expense incurred, or a non-monetary contribution if received, to promote a party or candidate.
Candidates, she reminds us, have limits on spending, and are entitle to some reimbursement; the parties have a different regime. If this were to allow candidates to buy ads to promote the party, the party would, in theory, be allowed to use its spending limit to promote candidates, which would go against the very notion of spending limits, and the spirit of the Elections Act itself — which is why the manual was updated. It was meant to more clearly reflect the interpretation of the law. Decary, she says, with a sad smile in the direction of the opposing counsel, is trying to make something out to be new that isn’t new at all.
Just to be clear, Tabib asks, the interpretation of the rule did not change? Correct, says McIsaac. In the Vezina deposition, over which Decary – and others, including Russ Hiebert during last week’s Ethics hearings – have recently been making such a fuss, she was answering hypothetical questions, not discussing the case in question. “It’s an absolutely hypothetical situation,” she stresses.
McIsaac then moves to the question of scheduling – in particular, how bringing in new evidence would mean further delays in the pre-review process, which, at the present time, is “nearly done” as far as depositions and other prep work. More importantly, she notes, as far as the rejection of the reimbursement requests — which is the issue under dispute — the decision was made based on reasons that had nothing to do with the content. She then recaps the “five points” that Mayrand laid out for the committee last week — inadequate documentation, lack of awareness amongst candidates, etc. — before concluding that content “has never been the deciding factor” — and, as such, the wording in the manual is largely irrelevant.
Is this starting to sound eerily reminiscent of last week’s Ethics hearing to anyone else? It’s beginning to seem like the Conservatives on the committee were using Mayrand’s appearance as a sort of warm-up round; an opportunity to try out a new line of defence — or offence, depending on the context.
McIsaac, meanwhile, has now dismissed the change to the manual as a “made up issue” that Decary “is giving far more weight” than it would ever have had, particularly since this is more than just an application for mandamus, but a situation where the court could send the matter right back to Elections Canada, and Mayrand, for reconsideration.
This issue – election expenses, and the incurring thereof – has “never come up so starkly” before this case, and there has never been a ruling on how Elections Canada interprets the rules. The whole thing is a “red herring”; the question is not what the manual says, but whether the expenses were incurred by the party, or the candidate.
Tabib isn’t quite ready to write the whole thing off, and tells McIsaac that she can see how it could be an “element” – even if it is a tiny one, and even if the applicants failed to bring it up at he beginning – but where, she wonders, is the prejudice? Why not allow just the key paragraphs from the affidavits to be entered?
McIsaac acknowledges that it is probably not prejudicial to her client, but if introduced, the new evidence would result in more delays – it would put the whole thing off for “goodness knows how much longer”. Plus, if Decary is allowed to bring in new affidavits, she’s going to want to do the same thing, and introduce new evidence in response.
Does that mean that if the affidavits are rejected, the evidence is closed, Tabib wonders. If she allows in only one paragraph, does that call for reopening the entire case? Yes, according to McIsaac: there have been “developments” in the investigation currently being conducted by the Commissioner of Elections, for instance, which has produced new information that Elections Canada may want to submit — even if Decary is only allowed to introduce two paragraphs from the affidavits.
Oh, and she wants no limits put on what she can ask during cross examination of the affiants – yes, even if just one or two paragraphs are entered. These candidates, she reminds the court, are demanding money from the Chief Electoral Officer, after all. If they’re going to file affidavits at the last minute, there should be no limit to the questions she can ask.
Tabib offers to set fairly short deadlines for depositions and cross examination – it could be done by the end of next week, as far as she can tell. McIsaac concedes that a quick turn around on that front would be less prejudicial, but reminds the prothonotary that she intends to file affidavits and evidence in response. Tabib wants to know what sort of evidence would respond to a personal affidavit, and asks for a preview; McIsaac then actually manages to make her laugh by pointing out that it was she who actually filed Decary’s affidavits – “I didn’t think I had to file mine.”
“Good one,” says Tabib -but even so, she still wants to know what sort of evidence McIsaac has in mind. The application for the search warrant from the Commissioner of Elections, for one, as it contained information previously unknown to Elections Canada, and would form part of the cross-examination. Not the material seized during the subsequent search, to be clear, but the documents attached to the application itself.
Decary, meanwhile, has been looking distinctly more attentive ever since the warrant surfaced as a possible item of evidence, and is now nodding his head in furious – if silent – agreement. With what? It’s not clear.
McIsaac summarizes her objection to the motion by pointing out, once again, that the onus is on the applicant to demonstrate that the affidavits are based on information that wasn’t available before now, which he hasn’t done. Although Elections Canada will not be “seriously prejudiced” if the material is allowed in – provided that they can “fully explore” the affidavits during deposition – the motion simply doesn’t meet the test set by case law.
Decary now has the chance to respond, and assures the court he only has two points to make before he once again manages to thoroughly befuddle everyone in the room – including Tabib – with his reference to a particular paragraph in the Vezina affidavit that, he says, suggests that Elections Canada has no documentation to back up the “claim” that the wording in the manual reflects both current and past practices. He also seems willing to accept the compromise hinted at by the court — that only the key paragraphs from the affidavits be introduced — but challenges McIsaac’s warning that doing so would “open the floodgates” as far as new evidence that could be introduced in response. “These accountants from Eastern Ontario had very limited participation in the campaign.” he says.
[Incidentally, at this point, my notes include the following observation: “He reminds me of the actor who played the crooked lawyer in the Addams Family movie.”]
These affidavits, he argues, demonstrate that, contrary to what Elections Canada may claim, the candidates knew why the money had been spent. “It’s clear that they knew what this was for,” he stresses. The larger question, ultimately, is for the court to decide. But, wonders Tabib, by allowing the applicant to put these affidavits into the ercord at the eleventh hour, does that not go to the heart of why the Chief Electoral Officer rejected the claims?
These are thousands of dollars flowing in and out through via wire transfers, Decary – who is getting more animated by the second, and is starting to inch backwards with every gesticulation – notes, but it was the Vezina deposition that made it clear that it was a matter of consent.
Finally, as for the threat from McIsaac to do a little eleventh hour evidence introducing herself, he dismisses the notion that the search warrant could be filed – “it has nothing to do with any of this.”
And now – the schedule. Depending on whether or not the affidavits are accepted, any subsequent cross examinations would have to be extended to July 27, according to Decary, and Elections Canada would be given until August 2 to respond. The applicants’ record – which was originally supposed to have been filed by July 15th – would be extended until August 13th if the motion passes.
McIsaac reminds the court that she has plans for the first two weeks in August, and tells Decary that, should the affidavits be allowed in, the affiants had best “make themselves available” next week.
Tabib isn’t quite ready to give McIsaac carte blanche to introduce evidence in response, however – even though it is usually granted automatically. Without a clear indication of what she would file, she’s not going to approve it sight unseen. Some grumbling from McIsaac, who will now, I guess, have to file a separate motion if she wants to respond, but Tabib is immovable.
And on that note, she brings the session to a close, and leaves the courtroom; the two lawyers chat as they pack up their respective briefcases, and I flee to the foyer to hurriedly type out an update-let before heading back to the Hill. I’m not sure when Tabib will issue her ruling, but presumably, she won’t take long, since she’s already said that cross examination would take place next week.