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Charges laid


 

An anonymous Conservative official tells the CBC, Postmedia, CTV and the Star, that four party officials have been charged by Elections Canada in connection with in-and-out campaign financing: Doug Finley, Irving Gerstein, Michael Donison and Susan Kehoe.

More background from Pundits Guide here and here. Kady O’Malley has the official Conservative talking points on this “long-running accounting dispute.”


 

Charges laid

  1. Anonymous? Honest to God, can't these twits ever just be straight up? Let the trashing of Elections Canada begin.

  2. And why can't Elections Canada just tell us all what they're up to on the record?

  3. Well, there goes the 'scandal-free' govt.

  4. Whatever. If Elections Canada were giving suspiciously generous breaks to overdue Conservative election financing and laying questionable charges against Liberals, You People would be screaming bloody murder.

  5. This is over the exact same issue that the courts trounced EC on, right? Just trying to save face, eh Mr. Mayrand? The problem here is that we have election financing laws. No one should be charged for spending money that was donated to them in order to be elected.

  6. Well, I suppose it's always good to get that "It's an administrative charge, not a criminal one" soundbite out there as quick as possible.

  7. Finally! and very well deserved…. hopefully this is only the first step of our civil society fighting back

  8. Conservatives are supposed to be the law and order party – apparently when the law gets in their way, they forget that part.

  9. They wanted to leak it so it would get dealt with an absorbed in the friday news cycle, before the house got back.

  10. I guess you missed the part about the Elections Canada loss in court, currently under appeal? So far, Canadian jurisprudence has "the law" agreeing with the Conservatives. But don't let facts get in your way. Carry on.

  11. After listening to Bob Rae today i'm not sure…is it appropriate to call them the "jihadists" at Elections Canada for filing charges in a case they've already lost in court?

  12. How many times have the Cons appealed a case they'd already lost in court?

  13. Do you get the difference between (a) appealing a case, and (b) filing charges before the appeal process is completed even though the charges you are filing are based on a defeated legal position?

    Oh, wait, are you that Emily? If so, you need not bother answering the above question.

  14. You need to read Pundits Guide links.

  15. LOL yeah, it's me.

    They are appealing…a normal procedure. As far as I know these are new individual charges.

  16. Surprisingly, the agency took the action even though it had lost a related court case against the Conservatives a year ago and a verdict in its appeal, heard last November, has not yet been rendered.

    –Mark Kennedy, Postmedia News

  17. "(b) filing charges before the appeal process is completed"

    Elsewhere on Macleans:
    "Industry Minister Tony Clement reiterated on Wednesday that Ottawa will compel the CRTC to overturn any decision that imposes usage-based billing on small Internet service providers."

    It's Ottawa. Who cares about due process?

  18. I doubt it would serve their purposes.

  19. MC, did you just use a stupid murky on-a-whim government decision-making process to justify another stupid murky on-a-whim government decision-making process? May I ask: Why?

  20. The issue that got decided was whether the Conservatives could resubmit certain calculations of expenses. Individual candidates may still break the law, even when the law is "related". it's not like EC said "you may now funnel money through ridings in any way you deem appropriate."

    I hope these cases reach their conclusion in a timely manner and that any parties found to have acted improperly will own up to their faults.

  21. Read Pundit's – there's much more to this.

  22. You know, with all the "Taliban Jack", "Hate the troops" rhetoric we've put up with over these past years, I don't give a damn what Rae has to say.

  23. Imagine the CPC screeching!

  24. It's about the Cons doing whatever they want to despite the rules. If they don't like what the CRTC or the Elections Canada is doing, they should change the law.

  25. is jail time a possibility for these particular offences?

  26. A single court, with a single judge, and a non-binding decision.

    An important distinction.

  27. What good would that do? They are already following the law according to the courts.

  28. Okay, first, the courts didn't trounce EC on it. They told EC they couldn't with-hold the reimbursement for the expenses until they'd proven their case.

    Second, are you insane, or just stupid? You do realize that eliminating all election financing laws would essentially turn politicians into corporate mouthpieces?

  29. Related. Here's a hint, related does not mean "the same as".

    It's related because EC tried to with-hold the reimbursements to the candidates. The Courts said, you can't do that until you've proven they violated the rules. That's the case they lost and that's the case they're waiting for an appeal on.

    It's also a case that says nothing one way or the other toward the primary case of "Did they break the rules?"

  30. Oops! Initially I thought they finally charged some corrupt Liberals for stealing $40 million dollars, but still no charges for real crimes? They have to make up stuff in order to attack Conservatives.

  31. Other than the fact that a) the LPC did not steal 40 million dollars,and b) EC are not making anything up, you have an excellent point. About nothing.

  32. "You People", capitalized so?

  33. Helena Guergis?

  34. Can you quote five examples of all of this "hate the troops" rhetoric? That's all I ask. Just five. Links to Hansard or publicly-accessible media reports are ideal.

  35. Oh good, we get to make stuff up now?

    Great! I make up a law that says you can't spend $425 million in partisan advertising thinly disguised as "government " advertising. And whether ot not this crime gets reported, someone is going to jail. Maybe even to the gallows.

  36. Don't Liberals always complain about the RCMP investigating a bunch of scandals ??

    Typical hypocrisy.

    Disgusted Cats

  37. Innocent until proven guilty much ?

    Disgusted Cats

  38. What does innocence have to do with scandal?

  39. Weird how a couple other sites disabled comments for 'legal reasons'..

    Are they lookin for money in the new budget and the muzzle was slapped on them ??…lol

    While the neocons are touring the country touting old money…

    WOAH cowboy pull the reins a bit there…( easy boy ) they did have 100 million over 4 yrs NEW money for 100 doctors while prancing around on 6 BILLION on corporate tax cuts…

    HUH ??..Shouldnt it be the other way around ??

    Well me son the country's gone 'arse over' what can I tell ya

  40. Well ya, considering the actual criminal courts found them innocent.

  41. Small point, your linked article refers to Elections Manitoba, not Elections Canada.

  42. Ah, I see a whole bunch of people developing a very sudden (and sadly, probably short) appreciation for the rule of law. Color me amused.

  43. Not hard to tell that the last 4 polls showing the Conservatives in Majority territory have fired up the Canadian media’s “scare mongering machine”

    So far, we’ve had Taber from the Globe trying to extend the Oda NON-scandal as long as possible, we’ve had Aaron’s usual anti-conservative posts, We’ve had frank graves back on saying the Conservatives have lost momentum and are now only 5 points ahead of the LIberals (Which is exactly what the Conservatives said he would do….to make it look like the Conservatives are set back)

    Elections Canada gets into the game to provide another hit to the Conservatives…blah..blah….not-criminal charges……..(which Elections Canada has already lost)..blah…blah..blah…

    So please, tell me again how we don’t have any anti-Conservative bias in the media, or at Liberal staffed groups like Elections Canda?

    So normal now…..it’s hardly worth pointing out.

    Guess a Harper majority really scares the heck out of Canada’s writers (can’t call them journalists)

  44. What they did or didn't steal is a matter of debate.

    But they did use illegal campaign donations collected in brown paper bags of cash and passed them out to ridings in Quebec without reporting them. This has been confirmed by several Quebec Liberals, of which one is Benoit Corbeil.

    Please describe what action Elections Canada took against the Liberals for these transgressions of election financing laws.

    The Liberals have also failed to pay back their leadership campaign debts within the required time frame. Please describe what action Elections Canada took for this transgression.

    Now tell me again how the jihadists at Elections Canada are fair, unbiased, and independent.

  45. Obviously Elections Canada wasn't stacked with enough Con hacks.

  46. Not proven yet

  47. iT'S THE oDA "NOT" scandal, not Oda non-scandal.

  48. And you do realize that Stephen Harper was the named applicant in an attempt to do exactly that when it comes to third-party spending? Not to disagree with the rest of the post, but let's not assume that just because a position is insane or stupid the Harper Cons are above pushing for it.

  49. there you go using facts to discredit an eager airhead

  50. obviously you all dont know nothing, & should be welcomed to the reality that its a cold cruel world and that everybody is just a human being & everyone commits crimes and breaks the law one way or another throughout their life, a saint or not.

  51. Are you suggesting that political parties should not abide by the election laws because they don't lead to criminal charges?

  52. people will do what they want and feel they should, if there is a law in effect or not. To further themselves, the way it is, the way it has been.

  53. Where's that sad trombone?

  54. "jihadists"

    That word. I do not think it means what you think it means. Perhaps you meant "biased evildoers" or "partisan civil servants"?

    That, and other derivise terms, like "conbot" and "libtard", do nothing to keep the discussion flowing. It also tends to discourage anyone from bothering to answer your question.

  55. When? The charges were only just brought.

  56. You misread that court decision.

    All the court said was you can't deny the receipts to the candidates if you haven't brought charges against the party. It was a process decision.

    And now they have brought those charges.

  57. You misread that court decision. And the journalists are picking up the Conservative talking points and confusing the facts.

    All the court said was you can't deny the receipts to the candidates if you haven't brought charges against the party. It was a process decision.

    And now they have brought those charges.

  58. Do you get the difference between (a) appealing a case, and (b) filing charges before the appeal process is completed even though the charges you are filing are based on a defeated legal position?

    As others have pointed out, wasn't the decision in that earlier case that EC couldn't refuse to reimburse the CPC until they'd proven in court that the CPC had broken the rules? I don't think the courts have ruled that the CPC didn't break the rules, they just ruled that Elections Canada can't refuse to reimburse the party for the money until they prove in a court that CPC officials broke the rules.

    Aren't these charges just the first step in doing what the court told them to do? I mean, Elections Canada is appealing the decision because they think that they should be able to say to the party "We say you broke the rules, so we're withholding that money, because you're not entitled to it". The Tories say "No, you have to prove in court that we broke the rules FIRST, but in the meantime you have to give us the money, because no matter what happened the preumption has to be that we followed the rules, until proven otherwise". So far, my understanding is that the courts have ruled that the Tories should get the reimbursement money until EC proves they broke the rules in a court of law. EC is appealing that decision, but in the meantime they're taking the question of whether or not the rules were broken to court to prove that the CPC broke the rules, so that even if the earlier ruling is upheld they can still get the money back (presuming that they win the new case).

    Am I wrong?

  59. derivise terms, like "conbot" and "libtard", do nothing to keep the discussion flowing.

    ***

    In fact, they are often used to stop the conversation flowing.

  60. Maybe you missed this, but a bunch of people were charged criminally for the sponsorship transgressions. Maybe you can detail for me what actions were open to EC based on the evidence (and I mean actual, verifiable evidence, and not some conservative fantasy evidence).

    While you are at it, please point out what section of the Elections Act directs EC to take steps against candidates who do not repay their loans on time. Please detail what steps EC should have taken.

    Thanks

  61. And please refer to the Elections Act as it existed in the early 1990's when considering what EC should have done about the Sponsorship Scandal. As you may be aware, it was amended after the information about sponsorship came out.

  62. Oh that's it. It has nothing to do with the CPC conducting themselves in a manner that draws the attention of EC. It has nothing to do with the CPC playing games in order to circumvent the law by spending more than that law allows.

    Oh no – it is about everyone else in the whole wide world conspiring against them.

    The lengths some conservatives will go to absolve themselves of taking responsibility for their own actions, and the actions of the party they support, are mind boggling. How can people like you actually claim to stand for personal responsibility when you go on this silly whining rant every single time things go wrong for the CPC.

    Have you considering just asking the party why they decided to play games and try to skirt the intention of the spending limits?

  63. Good feedback. I've sent your comments to Bob Rae, cc: the rest of the press gallery, who apparently have no problem with that term as it is applied to the PMO. Given the lack of outrage over Rae's usage of that word, on multiple occasions now, I believed that it was within the bounds of acceptable discourse.

  64. Maybe you can detail for me what actions were open to EC based on the evidence (and I mean actual, verifiable evidence, and not some conservative fantasy evidence)

    I would be more than happy to Gayle. Based on the testimony by Benoit Corbeil, in court (that constitutes actual verifiable evidence where I come from) that the Liberal party took unregistered cash donations and funneled them to ridings in Quebec without disclosure to EC? The potential penalties include deregistration of the party and liquidation of its assets.

    Canada Elections Act

    Subsection 501

    Additional penalties

    (2) If a registered party, its chief agent or registered agent or one of its officers has been convicted of an offence referred to in subsection (3), the court may, having regard to the nature of the offence and the circumstances surrounding its commission, and in addition to any other punishment that may be imposed under this Act, by order,
    (a) direct the Chief Electoral Officer to deregister the party;
    (b) if it directs deregistration under paragraph (a), direct the chief agent — or another person specified by the court — to liquidate the party's assets; and
    (c) if it directs liquidation under paragraph (b), direct the financial agent of each registered association — or another person specified by the court — to liquidate the registered association's assets.

    Offences covered by this subsection:

    (3) For the purposes of subsection (2), the provisions are:
    (a) paragraph 497(3)(b.2) (providing or certifying false or misleading information or making false declaration);
    (b) paragraph 497(3)(b.3) (providing false or misleading information);
    (c) paragraph 497(3)(f.07) (failure to provide financial transactions return or related documents);
    (d) paragraph 497(3)(f.161) (entering into prohibited agreement);
    (e) paragraph 497(3)(f.162) (making representation re contribution);
    (f) paragraph 497(3)(f.163) (collusion);
    (g) paragraph 497(3)(i) (failure to provide financial transactions return or related documents);
    (h) paragraph 497(3)(k) (providing financial transactions return containing false or misleading statement);
    (i) subparagraph 497(3)(m)(ii) (providing election expenses return containing false or misleading statement); and
    (j) paragraph 497(3)(v) (providing electoral campaign return containing false or misleading statement or one that is incomplete).

  65. The EA as it was written at the time please.

    Also, these donations – were they known to the party? Or were they taken by a few dishonourable people. Because I do not remember any evidence that this was a scheme developed and conducted by high placed national party officials as part of a general scheme known, and condoned, by the party.

  66. he knows it's individuals, and he insists on saying the party.

    Very little about John G. represents honest discussion.

  67. Piss off Gayle. Are you trying to argue that it was legal in Canada to fund elections via unreported brown paper bags of cash in 1997 or 2000? It wasn't.

    Party or individual. Who cares. Find me one charge that was laid by Elections Canada against any Liberal in relation to those admitted funding irregularities. Just one.

    You can't. Because EC has never laid a single charge. They've granted multiple extensions to Liberal leadership candidates to pay off their debts. While waging their jihad against the Conservatives. Now tell me again how they are fair, balanced, and independent.

  68. Party or individual. Who cares.

    ***

    You do. it's very important for you to taint the party.

  69. I'd be quite happy for EVERYONE to stop misusing the word. I've made that very suggestion to several media and politicians. Seems they have an issue with answering emails. You have the singular position of being the only one to respond in any way.

    So, why not set the example?

  70. I think she is trying to say your argument that Elections Canada did not do anything is only meaningful if there was something they could actually do. You reference the current legislation as proof they could have done something, but if those provisions did not exists in the 1990's it is not proof of anything.

    You have made an assertion you cannot back up.

  71. The reason party or individual is important is because you have tried to compare this with the current charges against the Conservative Party and that is not an apt comparison in this case. Also, a party is not going to be deregistered due to the actions of a few corrupt individuals.

    I hope this all helps.

  72. Piss off Mike. When the individual in question is the guy who runs the Quebec wing of the party, that's not some random individual. And you bloody well know it.

  73. Your false indignation is as important to you as your loose relationship with the truth.

  74. I don't say "The Conservative Party snorted cocaine and drove while intoxicated." I say "Rahim jaffer snorted cocaine and drove while intoxicated". Same principle.

  75. Get it straight: there's a difference between Elections Manitoba and Elections Canada.

  76. Also, a party is not going to be deregistered due to the actions of a few corrupt individuals.

    No, probably not. It was formally requested of EC by the leader of the Libertarian party of Canada, but EC ignored him. I pointed out the law that makes it a possible consequence, as was requested by Gayle as part of her usual diversionary tactics, but I agree that would have been an extreme punishment.

    But one would expect that somebody within the party or the party itself would face some kind of charge or sanction from Elections Canada for running an election campaign in Quebec that any Middle Eastern dictator would be proud to call his own. To this date they have not charged one single person. And yet, they see fit to file charges against the Conservatives for a practice which the most recent legal decision has indicated is within the law.

    I think it's time for a housecleaning at Elections Canada. I don't see how anybody can think they are behaving as their mandate demands: to be politically impartial and neutral.

  77. You're not wrong.

  78. Actually, you pointed out the law as it stands today. You have not pointed out the law as it stood at the time. Please understand there is a difference and it is utterly meaningless for you to refer to today's statute as a means to prosecute yesterday's infraction.

    If you cannot find any legislation to back up your claim that Elections Canada could have done something about this in the 1990's, then all you are doing is blowing hot air.

  79. A Harper majority really scares the heck out of Canadians.

  80. That subsection describes what a court may order the Chief Electoral Officer to do, not what the Chief Electoral Officer may choose to do.

  81. obviously you all dont know nothing . . .

    So the moderator bot obviously does not like the word fsuck?

    "from David Niven's autobiography, Bring on the Empty Horses. Director Mike Curtiz to David Niven & Errol Flynn: "You lousy bums, you and your stinking language, you think I know fsuck nothing, well let me tell you – I know FsUCK ALL!"
    — David Niven

  82. Apparently not. They both think it's their role to rig elections.

  83. Really? Name calling? Thanks for your enlightening contribution to the conversation.

  84. Your spelling is terrible. I'ms ure you meant to type:

    "Whoops! It looks like I was in error on that point, even though I still [self-servingly] believe that Elections Canada are Liberal shiils."

  85. Just 65%-75%.

  86. And I, for one, am OUTRAGED that Elections Canada didn't charge Rahim Jaffer for driving drunk and possessing cocaine.

  87. You're indeed not wrong. The ruling in question can be found at http://www.canlii.org/en/ca/fct/doc/2010/2010fc43… Note, in particular, paragraph 255 on page 75:

    "With respect to the legality or illegality, as the case may be, of the actions taken during the
    2006 election period by the Party or the Fund, there remains an ongoing investigation by the
    Commissioner, and therefore, it would be premature and inappropriate for the Court to comment or
    rule on this question."

  88. Soooo Cats, what's an "actual Canadian" again?

  89. It is possible, but I suspect it's unlikely. Each of the charges is on summary conviction with a maximum penalty of a $2000 fine or one year imprisonment or both, but a first-time conviction (I'm presuming) on a summary conviction offence is extremely unlikely to attract the maximum term of imprisonment, and probably unlikely to attract any jail time at all. Mr. Gerstein, being the only individual facing two charges, could theoretically face two years imprisonment, but since Canadian courts virtually never impose jail terms consecutively, I'd be willing to wager a large sum of money that I don't have that that won't happen.

  90. If they're convicted (which they haven't been, and let's not go assuming they will be), I'd expect fines and maybe suspended sentences. But then, I Am Not A Lawyer.

  91. pardon me, you are correct, it was in poor taste and also weakened my point….
    (I was perhaps influenced by the icon & name you post under, sourstud)
    How does this work for you?
    "there you go using facts to discredit sourstud"

  92. I suggest you read the actual court decision. The court said way more than that:
    http://decisions.fct-cf.gc.ca/en/2010/2010fc43/20

    Feel free to read through the whole thing, but to get a sense of how badly Elections Canada blew its decision-making over expense reimbursement, one may wish to jump to paragraphs 74, 88, 90, 98-102, 124-8, 131, 165-6, 178, 201, 207-8, 226, 250-1. To find anything close to "CPC bad," have a peek at paragraphs 237-8 (themselves somewhat offset by the judge slapping Elections Canada for dumb reasoning in paras 240-1), 244-5, 255, 261, 268.

    It seems the worst offense was the uneven allocation of invoice amounts for three participating candidates in the Halifax area regional media buy, thus triggering a judicially deemed "non-monetary contribution" from CPC to the candidate in question that reflects the effective "discount" he was granted. An eraser,a pencil, and a few thousand bucks adjusted from one column to another, and we're done.

  93. I haven't had time to read through the whole thing, but I certainly acknowledge that there doesn't seem to be much "CPC bad" in there. However, isn't that at least partially because the judge was considering whether or not the CEO can withhold reimbursements on his office's own authority if his office believes the rules were broken, but NOT considering whether or not the rules were broken.

    To my mind, the key paragraph is 255: ""With respect to the legality or illegality, as the case may be, of the actions taken during the 2006 election period by the Party or the Fund, there remains an ongoing investigation by the Commissioner, and therefore, it would be premature and inappropriate for the Court to comment or rule on this question." (emphasis added)

    Personally, I'm not at all saying that the Tories are definitely going to lose when the legality of what they did is assessed by a judge, I'm mostly concerned about countering the impression that a judge has already ruled that what they did was legal, which is demonstrably untrue. I'd also like to try to counter the impression given by some that Mayrand is on some sort of witch hunt. People who think this is some sort of vendetta by Mayrand ought to keep in mind that he asked the Election Commissioner to do an investigation, the Elections Commissioner handed over the results of said investigation to the Office of Public Prosecutions, and THAT office recommended today's charges. My biggest concern at this point is that the Harper created Office of Public Prosecutions is going to go the way of the Harper created Parliamentary Budget Office. It seems to me that in the few cases that the Tories actually implemented potentially substantive measures to make government more accountable they almost immediately ended up regretting it and set to delegitimizing the very offices they promised to set up, and I hope this doesn't end up happening again.

  94. [74] Indeed, at the time the impugned decisions were made, the respondent had already accepted to certify the claimed advertising expenses of 17 candidates who participated in the RMB [regional media buy] program. In the case of the respondent's refusal to certify the claimed advertising expenses of the other 50 candidates who participated in the RMB program, including the applicants, the reasons given by the respondent are minimal, to say the least. The letters sent by the respondent hardly permit the Court to follow the reasoning that led to the refusals in question.

  95. I disagree, I think it's more like 55-60%.

    There have to be SOME Liberal voters out there who aren't "scared" by the prospect of a Harper Majority, maybe some Greens too. I agree that the vast majority of people who didn't vote Tory in 2006 are scared by the prospect of a Harper majority, but by placing the percentage who are scared at 65-75% you're actually assuming that EVERY non-Tory voter is scared by the prospect (surely not true) and in addition to that that some small percentage of TORY VOTERS are scared by the notion of a Harper majority (also seems unlikely).

    I suppose it's possible that EVERY non-Tory voter is scared by the prospect of a Harper majority, and it could be possible that some small number of Tory voters are scared of that as well, but I don't think both of those thinks are true!

  96. [90] The respondent (Elections Canada) concedes that “in and out” transactions between a registered party and a candidate, during an election period, are not prohibited by the Act.

  97. [98] (on the appropriateness of $ transfers between parties and their candidates) Parliament, and not this Court, is the authority suited to make the necessary changes. Nothing would prevent Parliament from amending the Act to limit the amounts that can be transferred during an election from a party to a candidate.

  98. Sure, but "I can't follow the reasoning used by the CEO for the refusals given the minimal evidence before me" isn't "the CEO had insufficient reason for the refusal". And it's CERTAINLY not "the expenses and how they were handled were entirely legal".

  99. [124] Accordingly, the Court finds that the respondent, or Elections Canada's representatives, erred in law in requiring that there be actual written contracts between the candidates or their official agents and the supplier of the advertising services that were provided in December 2005 and January 2006. Payment for these advertising services in January 2006, by the official agents of participating candidates, is proof that these services were duly authorized. Moreover, as illustrated below, the requirement to have actual written contracts appears to be contrary to Elections Canada's and the CEO's past practices with regard to RMBs. (Bolding is MYL's)

  100. [28 (sic, it's 128)] One of the conclusions that may be drawn from the above information, therefore, is that it is not illegal for a party to incur expenses on behalf of a candidate and then bill a candidate for those expenses. Similarly, it is not illegal for a party to acquire goods or services and then resell them to a candidate. In both cases, however, the transactions must be duly reported. (Bolding is MYL's)

  101. This is a biggie, on whether a "party" promotion could be a candidate's ad:

    [131] According to the respondent therefore, to be an election expense for a candidate, the election expense must be used to directly promote or oppose a candidate, and not a registered party or its leader. The Court does not accept the respondent's disjunctive interpretation outlined above. A plain reading of subsection 407(1) does not authorize the Court to discard the words used by Parliament in enacting this provision. Rather, a plain reading favours the conjunctive interpretation that was found in material published by the CEO prior to the 2006 election. Namely, an election expense for a candidate can be one that exclusively promotes a candidate, or it can be one that directly promotes both a candidate and a registered party or its leader. (Bolding is MYL's)

  102. Sure, but the very next sentence is: "However, in the present case, the respondent submits that the RMB program was a sham which illegally permitted the Party to transfer to participating candidates the liability it incurred for the broadcasting of national advertising".

    And the judge didn't rule that it WASN'T a sham to illegally permit the Party to transfer liability, just that the decision as to whether it was legal or not isn't for the Chief Electoral Officer of Canada to make (that decision needs to be made by a Court) and that in the meantime Elections Canada has to presume that the Tories followed the law until a judge rules that they didn't (the judge also EXPLICITLY stated that it was premature to decide on the legality of the program, and that said decision was beyond his pervue anyway).

  103. Others did it and nobody's chasing them:

    [166] a group of candidates appear to have jointly purchased a radio ad from the New Democratic Party (NDP) during the 2006 election. Based on the evidence, it seems that the cost of the ad was allocated equally among the candidates, but that the NDP transferred money to the candidates to help subsidize the purchase. (Bolding is MYL's)

  104. It could still be illegal for the party to incur expenses NOT on behalf of a candidate (but ginned up to APPEAR to be on behalf of a candidate) and then bill the candidate for those expenses, couldn't it?

  105. Conclusion: the judge may think [255] that it is premature to comment on the legality of in-and-out regional media buys, but he has already convincingly commented [74, 90, 98, 124, 128, 131, and 166] on the legality of in-and-out regional media buys.

  106. Namely, an election expense for a candidate can be one that exclusively promotes a candidate, or it can be one that directly promotes both a candidate and a registered party or its leader.

    Presumably this leaves open the possibility that it's nevertheless illegal to bill to the candidate an election expense that directly promotes a registered party or its leader but NOT the candidate.

  107. OK, now THERE'S an amendment that needs to be made.

    There's no requirement for there to be actual written contracts for election advertising expenses!?!?!!

    W. T. F.

  108. That's a good point politically, but legally isn't it worth the same as saying "It's OK that I did X, because someone else once got away with it before I did it"?

    Then again, "It's OK that I did X because Chretien did it before I did" is pretty much Harper's mantra.

  109. [35] Thus, a candidate could contribute to a regional media buy (RMB) as long as it was within the campaign's election expenses spending limit. That being said, a campaign could not participate in the RMB program without the agreement of either its candidate or its official agent.

    [40] By December 19, 2005, the London and Dartmouth campaigns had both agreed to participate in the RMB program. NB this was before invoices were sent out.

    Also, ONLY candidates who agreed to participate got the in-and-out funds and invoices.

  110. Sure, but this is just saying that the Court can't make it illegal to transfer funds between the party and a candidate. That has nothing to do with whether this particular transfer of funds was legal.

    It's legal for me to fire a gun. If I fire a gun AT YOU though, I've got a problem. What the judge is essentially saying here is that it's not up to the court to make firing a gun illegal, only Parliament can do that. A court could still rule though that even though it's generally legal for me to fire a gun, that one time I fired my gun in a guy's face was nonetheless illegal.

  111. 407. (1) An election expense includes any cost incurred, or non-monetary contribution received, by a registered party or a candidate, to the extent that the property or service for which the cost was incurred, or the non-monetary contribution received, is used to directly promote or oppose a registered party, its leader OR a candidate during an election period. (Bolded text and capitalized "OR" are MYL's)
    http://laws.justice.gc.ca/fra/E-2.01/page-10.html

  112. I don't like it, but I agree that there's wiggle room for the Tories there. That said, if the ads were bought first, and the candidates agreed to help pay for them after, even if it's legal it stinks to high heaven to me.

    Also, while not true of all candidates, there were some candidates I believe who had no idea that they "agreed" to pay for these ads until they read about the issue over "in and out" in the papers after the fact.

  113. You want a CONTRACT between the Staples Photocopy Counter and the candidate's authorized agent to print out three hundred brochures for the candidates' debate in the church basement?

    Why isn't an invoice and proof-of-payment enough?

    Furthermore, why can't an email saying "Sure, our riding's candidate budget can afford this and we would like to go halfsies on some regional radio ads that you buy on our behalf" be enough?

  114. To an extent this is a fair point, however I'd also point out that to the extent the judge has thus commented, his comments were based upon evidence presented at a trial NOT INTENDED TO ADJUDICATE THE LEGALITY OF THE IN AND OUT MEDIA BUYS.

    I think it's plausible that more (and different) evidence might be presented by Elections Canada in a proceeding actually concerned with determining the legality of the scheme. In other words, even to the extent that the judges' comments may touch upon the legality of what the Tories did, these comments can be presumed to have been made absent all of the evidence available. Heck, the judgment itself references the fact that the EC investigation into the scheme was ONGOING while the judge was deliberating, so it's entirely possible that some "smoking gun" was found by the Commissioner AFTER the ruling we're discussing was made.

  115. Excellent point (among many others of yours, above), but in a prosecution involving guilt or innocence, the STANDARD for evidence is also much higher. As it should be.

    "We were doing what your own manuals told us to! We were doing what other parties have done and did do during the same campaign! You have APPROVED the transactions for reimbursements for many of our candidates before someone went all nutso over that which even Judge Martineau has said is OK!" That's not a bad opening defence.

    But yes, let's wait and see what the Public Prosecutor has got. The statement of charges is so wafer-thin in details as to have been useless.

  116. PS: Thanks, LKO, for indulging me in this back-and-forth.

  117. Their "big regional media buy" was handled by some kid at Staples? In that case, no, I don't need a contract for that.

    I thought this involved large advertising agencies creating national television ad campaigns for thousands and thousands of dollars.

  118. No, that's NOT what the judge is essentially saying. In your analogy, Parliament has ALREADY declared firing a gun in someone's face illegal. Parliament has NOT made $ transfers between parties and their candidates illegal. And hopefully it never will, if you think about it.

  119. OK, thanks. Possibility closed.

    Could it still be illegal to use party money to pay for an ad, and then after the ad is finished hunt around for a candidate to defer the costs too? What if (hypothetically… I don't know that this happened) the candidate in question agrees to help pay for the ad only AFTER it starts airing?

  120. The candidate didn't have to know, if the official agent did:

    [15] Only a candidate, their official agent or a person whom the official agent has authorized in writing to enter into contracts may incur electoral expenses (subsections 438(5) and 446(c)). Only the official agent, however, can pay those expenses (subsection 438(4)) or accept contributions to the candidate's electoral campaign (subsection 438(2)).

  121. Not at all! Fun for me!

    That said, I do have some things to do tonight, so if I stop replying so quickly shortly, please don't think I'm ignoring you! (and DEFINITELY don't think I'm agreeing with you, lol)

  122. Yup. It did. And the CPC placed the order, then split the bill. Party and ad agency have the contract drawn up between them. Candidates (or their official agents) consented to pay the bills. Invoices are sent to the candidates. The bills are duly paid by the agents. So what's the problem? Where is there not enough of a paper trail there?

    There is NO evidence that a manila envelope stuffed with cash crossed a chi-chi restaurant table in downtown Montréal. (Sorry. I thought I would beat the usual suspects to that.)

  123. Also an excellent point on your part, as other points of yours have been.

    I certainly agree that these new charges will be by no means a slam dunk for the prosecution. A lot of my commentary has been somewhat "Devil's advocate", and an attempt to disabuse some commenters of the notion that the Tories were already cleared on all of this in a previous ruling. As you know and have demonstrated there are many hopeful signs for the Tories in the previous ruling, however it also EXPLICITLY did NOT exonerate them of the accusations, a point that I know that you understand, but many commenters seem to fail to grasp.

  124. Good Q. The intent behind that does sound a little questionable, I suppose, under the law.

    (And please note how good I have been at refraining from calling the law itself a totally freedom-suppressing ass in the first place!) (Which, actually, it is.)

  125. Why does everyone always bring up Mulroney and his envelopes stuffed with cash??? :-)

    Anyway, I was actually being cheeky with that last post. Your framing of the issue with the Staples example wasn't perfect, but this comment definitely eases my concerns about a paper trail.

  126. It actually is not a good point politically. The reason the CPC are being prosecuted here is that they used this scheme to circumvent election spending limits. The other parties did not.

  127. I agree that my analogy is imprecise, but I maintain that while the transferring of funds between a party and a candidate is not in itself illegal, a scheme could be devised that involved the transfer of funds between a party and a candidate that COULD be illegal without necessarily requiring Parliament to intervene first to change the statute.

    In short, my argument is simply that while transferring money between a party and a candidate is legal (and should be as you point out), it does not follow axiomatically that all transfers of funds between a party and a candidate are necessarily legal. I won't try another analogy except to say that I think it's possible that Parliament has already declared X to be illegal, and that a judge may conclude that the Party's transfer of funds to certain candidates wasn't a legal transfer of funds as described in the Elections Act, but an attempt to do X and make it look like a legal transfer of funds as described in the Elections Act.

  128. Yeah, I was imprecise there. Wasn't there at least one case where NEITHER found out about it until after?

    At the very least it looks a bit sketchy that some candidates were helping to pay for ads they weren't aware of, and in some cases later said they wouldn't have contributed towards had they known they were doing so at the time.

  129. The reason the CPC are being prosecuted here is that they used this scheme to circumvent election spending limits. The other parties did not.

    Sure, but that's why it's not a good point LEGALLY. Politically it's still probably a good point to make because understanding that it's a false equivalency requires the voters to understand the nuance you're describing when all they hear on T.V. is Cabinet Ministers saying "the Liberals and NDP used to do this too!!!".

    It's the same reason that Tories bring up the times Chretien and Martin prorogued the House when defending some of Harper's dubious decisions to prorogue, because they know that most people won't care about the differences in context between the different instances in which prorogation was used if they say "Chretien used to do it" enough times (though when exactly "Chretien used to do it" morphed from an accusation into an excuse I'll never know!).

  130. But the judge's overall point was a good one: An itemized invoice for goods and-or services delivered, and proof that the invoice was fully paid, constitutes ample evidence that a consensual business transaction has taken place.

    And is the Queen E's Beaver Club really a chi-chi kind of place? Anyone?

  131. So why did the other parties do it?

    And since when is MOTIVATION for performing a legal act suddenly grounds for making the legal act illegal?

  132. OK, but the judge gave Elections Canada ample opportunity to testify in order to flesh out the cryptic thinking behind its decision making. Elections Canada had bupkus.

  133. If so, why wasn't THAT case before the judge?

  134. Die-hard Harper fans seem a little cultish actually….like religious fervor

  135. I don't think EC had even finished their investigation into the alleged improprieties. The case before the judge was before the judge not because EC brought it but because the CPC brought it. EC was the RESPONDENT remember. The Tories were trying (successfully it turns out) to force EC to reimburse them for the expenses. EC hadn't gotten around to charging ANYONE with ANYTHING yet, as far as I know, all they had done was refuse to reimburse the party for the expenses, and that was the decision that was before the courts and that the courts disapproved of.

    My understanding of what's happening here is that the first court case was about the Tories complaining that EC had applied a punishment before a trial was held and they wanted a judge to rule that the CEO doesn't have the authority to do that. Now, a trial to determine the veracity of some of the accusations will be held.

  136. since when is MOTIVATION for performing a legal act suddenly grounds for making the legal act illegal?

    Since, basically forever, no?

    Let me try another analogy and see if this one's better (I'm basing this on hypothetical statutes btw, I don't know that these laws exist). If there's a blizzard and I wear a ski mask to keep warm I can't be charged with anything. If I rob a bank wearing a ski mask I might be charged with a crime such as "donning a disguise for the purposes of committing a felony". In both cases the ACT is "wearing a ski mask" however in one case my intent is to keep warm and in the other my intent is to escape prosecution.

    Intent is the key. It's mens rea. Motivation has ALWAYS been grounds for making the legal act illegal (or, more precisely, distinguishing between the legal act and the illegal act when the act itself is superficially the same absent intent). It's the same way in which a PM proroguing Parliament because all of the government's legislation has passed and it's time to re-set the legislative agenda is different from a PM proroguing Parliament because the opposition just introduced a motion of non-confidence that the government knows it's going to lose. The act of prorogation is the same in both cases, but the context makes one instance acceptable and the other not.

    ETA: So, simply transferring funds or liabilities between the party and the candidate is (usually) legal. Transferring funds or liabilities between the party and the candidate in an intentional attempt to circumvent election finance laws may not be.

  137. Another point however is that, to my knowledge, the other parties did not really do the same thing.

    The other parties did transfer funds and/or liabilities between their parties and their candidates. However, I don't believe these activities by the other parties got them anywhere close to their campaign spending limits. Transferring the money isn't a problem unless it allows you to spend more money on advertising than you're supposed to be allowed to. Of course the Tories argue that they didn't spend more than their allowed to, but in their case there at least seems to be a prima facie case that they did, since one can look at the numbers in a way that shows a spending number that appears to be higher than allowed. In the case of the Liberals and the NDP though, I don't believe they got close enough to the spending limit that one can even argue that the could have theoretically exceeded it.

    The issue isn't money being moved between the party and its candidates, the issue is money being moving between the party and its candidates in a way which allows them to spend more money than the law allows (which hasn't been proven yet, but is the accusation that's being made by Elections Canada).

  138. Perhaps another way to put that is to point out that transferring the funds between the party and the candidates isn't the "offence" that the Tories are being accused of. The "offence" they're being accused of is deliberately exceeding election spending limits. The transfer of funds is simply the means they are alleged to have used to commit this alleged offence.

    Back to the murder analogy, swinging the knife in front of me isn't the offence I'm charged with, the offence is murder. The swinging of the knife wasn't the crime, it was the means I used to commit the crime. In another circumstance I could have swung the knife in front of me perfectly legally. If I hadn't been so close to my victim, my swinging of the knife might not have caused me any problems. And if the Tories hadn't been so close to the campaign spending limit, their transferring of the funds might not have been a problem either.

  139. Just on the freedom-suppressing point, I don't disagree, but so long as the freedom that's being suppressed is the freedom of political parties to spend unlimited money from unlimited sources on unlimited campaign ads I'm OK with it, if only because I'm sick of constantly seeing a scary red screen and a black and white Michael Ignatieff coming at me like he's emerging from the bowels of Hell.

  140. OK. I rephrase then: Why didn't EC refuse to reimburse any expense where (allegedly) nobody had a clue they were in on the RMB?

  141. The legal act is (or should be) still legal. In the commission of a crime, the <crime> is illegal.

  142. I think this is what we are finally boiling down to:

    Hey guys! We're maxed out nationally, and we still have money to spend, so here's a way WITHIN THE RULES (that anyone can read for themselves if they have internet access) that we can support your local candidacies if you would like to join together amongst yourselves on some regional media buys. Who's in? Because you each have to sign on in order for it to be legal, and you have to check your own finances to make sure this doesn't push anyone over their own limits. This, essentially, according to testimony and a judge's legal opinion, is the CPC in-and-out experience.

    Hey guys! We're hurting locally in many ridings, so here's a way WITHIN THE RULES (that anyone can read for themselves if they have internet access) that we can support your local candidacies if you would like to join together amongst yourselves on some regional media buys. Who's in? Because you each have to sign on in order for it to be legal, and you have to check your own finances to make sure this doesn't push anyone over their own limits — not that this is likely to be a problem for anyone. This, best I can tell, is the testified description (and Gayle's justification) of the NDP in-and-out experience.

    So, basically we are left with envy that the CPC had enough dough to buy a whole bunch of ads, but they hadn't maxed out every possible budget cap. This is the allegedly awful threat to democracy that must be stamped out or else we'll be North Koreans by next Tuesday. Or something.

  143. Just another way for the CPC to rob the taxpayers for their partisan electioneering.

  144. So, there's no difference between transferring money from the national party to the local candidates that the national party's not allowed to spend themselves anymore because they've maxed out their national spending limit, and transferring money from the national party to the local candidates that the national party could still spend themselves if they wanted?

    This will oversimplify the example, but I thought that the difference was essentially this (I'm also throwing in ridiculous round numbers for my hypothetical rather than looking up what the actual spending limits are):

    The spending limit for the party nationally is $10,000,000. The CPC starts off the election with $15,000,000 and spend right up to their 10,000,000 limit. Now that they're maxed out, they transfer the money that's left nationally over to their candidates' local accounts so they can spend the $5,000,000 the national account has left over that the national party is not allowed to spend themselves, already having spent their $10,000,000. The NDP essentially did the same type of transfer from their national to their local accounts, but as they started off the election with only $9,500,000 in their coffers there was never any risk of them going over the national spending limit, so there's no suggestion that their transfer of funds from the party to the candidates wasn't really a legal transfer of funds between the national party and the local candidates but a (potentially illegal) scheme for the national party to spend $15,000,000 on the election despite a $10,000,000 spending limit on the national party, by making it LOOK like a normal transfer of funds to the local candidates for local expenses when all it really was was a shell game designed to transfer the funds in to local accounts just long enough to be able to claim that the funds were now local funds (often just a matter of hours), and then transferring the funds right back to the national party again so the national party can start spending above the $10,000,000 cap. In other words, that it makes a mockery of local campaign spending limits if excess room left in candidate X's local campaign limit can be used by the national party to get candidate Y elected because candidate Y is past his or her spending limit. ESPECIALLY SO if the national party neglects to mention this all to candidate X or his or her official agent (which I'm still pretty sure happened in at least one case). The point is, isn't it, that if the law really meant all campaign spending to be treated as one pile of money, why would we have local spending limits at all? Is it within the spirit of the law on local riding spending limits that when a candidate in tough riding X reaches his local campaign spending limit the national party can just transfer funds temporarily to the candidate in easy riding Y, sometimes literally for a matter of moments, in order to spend that money to help get the candidate in riding X elected, even if that money is money beyond the limit that the national party is supposed to spend? I mean, at some point today I'll try to find a link to the old story, but I'm pretty sure in one case the money went in to the local candidates account and back out to the national account again without ANYONE at the local level knowing that the transfer had occurred until after the election. Then, they were going through their books post-election and suddenly had to try to figure out how this chunk of money appeared and then immediately disappeared from their own accounts.

    It may be that it ends up that a judge rules that it's totally legal to do all of this but Elections Canada still doesn't think so, and I think it's certainly more complicated in the case of the Tories' transfers than in the case of the NDP's, if only because the Tories reached that spending limit and the NDP never did..

  145. Who said they didn't? Once again, remember this is a case where EC is the respondant.. they're not responding to the areas where the CPC hasn't pushed forward, and given the nature of the matter, I'd suggest the CPC wasn't going to push forward on those more dubious cases until it had a precedent set in these ones.

    At least, that's certainly what I'd be advising them were I their legal representation.

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