It ain’t over till it’s over

by Aaron Wherry

Five months after a federal court ruling on so-called in-and-out campaign financing, it turns out an unpublicized portion of the judgment imperils the political careers of three cabinet ministers. And the commissioner of elections has apparently referred the matter to the office of the public prosecutor to consider criminal charges.

… in a little-noticed detail, he also found that one of the two candidates should have paid — but did not — an equal share of the full market value of regional advertising buys. Rather, the amount charged appeared to have been “purely arbitrary,” based on what the candidate could afford without exceeding his spending limit.

In documents supporting its motion to stay Martineau’s ruling, Elections Canada applies the equal share dictum to all 65 candidates involved in the regional media buys. The agency finds up to 10 of them would have exceeded their spending limits, including Cannon by $7,618, Verner by $13,304, Paradis by $10,188 and Bernier by $20,138.

In its appeal, the party suggests Martineau’s ruling violates freedom of speech guarantees in the Charter of Rights because it “effectively limits a candidate’s ability to run ads if other ridings in the same (regional advertising) pool are unable to contribute to the same level financially.”

The full federal court ruling in its entirety is here. This particularly issue would seem to be raised at paragraph 235.




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It ain’t over till it’s over

  1. Hoist by their own petard.

  2. By my understanding, the COnservatives argument is that candidates are entitled to spend up to the limit on their campaign, so long as any portion of the spending is used in their riding and directly supports their candidate. So, in theory, they could run a candidate in a riding they know they will not win (say, Chicoutimi) and then instruct him to spend $10 on his campaign, and the rest on a TV ad to air on Hockey Night in Canada. Since the ad would be seen in Chicoutimi, he and the party are okay.

    That seems contrary to the spirit of the spending limits. And, apparently, to the law.

  3. This particular election law is an ass.

    Are candidates supported to be able to fortell the future interpretation of the law by a judge.

    The candidates decided to pool funds. They contributed the amount they could under their election limit. A judge several years later says "pay-what-you-can" shouldn't be allowed, and decides that candidates have to pool equal funds.

    For a crime to be committed. There has to be intent to commit a crime. It was impossible to know a couple of years ago, how a judge would add provisions to the law that weren't written into the law until he decided to write them into the law.

    • "For a crime to be committed. There has to be intent to commit a crime."

      Absolutely not. Intent may factor into the type of crime, or the sentencing, but ignorance and good intentions are not an excuse to break the law, never have been.

      • The problem wasn't ignorance. The problem is the candidates were not clairvoyant. They committed a crime because some judge several years later writes a provision into the law that wasn't there.

        That the expenses must be divided equally does not pass a reasonable person test. They wanted to pool resources to buy ads. Each candidate would obviously then only contribute up to their own legal ability to do so.

        To say several years after the fact that that was not a reasonable or legal thing to do is just patently absurd.

        It is like choosing to paint your house blue, and then several years later a judge says that the color blue is illegal, and thus you are a criminal.

        The way they pooled the funds was a perfectly reasonable way to pool funds in the absence of clarity in the law. The judge is putting in clarity after the fact.

        • "Each candidate would obviously then only contribute up to their own legal ability to do so. "

          And then receive value exceeding what they could obtain under their legal spending limit. Only a imbicile would believe they could use this scheme to get more advertising then they could legally purchase alone without violating, at the very least, the spirit of the law.

          • The CPC has repeatedly shown that it has absolutely no regard for the spirit of the laws – only the easily twisted, weasel wording of the law.
            This is somewhat akin to why we have so many law and order concerns; It's not a justice system, it's a legal system – one that lawyers probe for loopholes at the expense of the victims.

          • "only the easily twisted, weasel wording of the law."

            Which explains why Pierre Poilièvre is the Conservative spokes- thingy on this file.

        • It was always a questionable practice. If you aren't sure, the best approach is to not do it and approach Elections Canada with your concerns.

          if you do not do this, you deserve what you get.

          • CPC Candidates testified in front of Parliament, saying they refused to participate because they viewed the scheme to be illegal.

            These guys knew exactly what they were doing.

        • "It is like choosing to paint your house blue, and then several years later a judge says that the color blue is illegal, and thus you are a criminal."

          Or like after your rival starts a leadership race, midstream you change the funding rules. After its started. Then complain that they've broken the rules.
          How CON is that?

        • I have to laugh when lawmakers are caught by an "absence of clarity in the law" Poetic justice if nothing else.

          But now I understand the new (renewed) American-type attack on "Activist Judges" which McVety was on about a few weeks ago, and on which Geddes completely demolished McVety's assertions on why they are "Activist Judges".

    • The judge may have only ruled recently, but I think Elections Canada's been after the Tories for this for quite some time. I don't think anyone ever told them this was fine (except perhaps their own party lawyers).

      Also, as Craig implies, ignorance of the law is no excuse. The time to figure out whether or not what you're about to do is legal is BEFORE you do it, not after.

      That said, do try this "You can't hold me responsible for violating this law, because I thought for sure that the judge would rule that I didn't violate this law" argument in a court some day and see how far it gets you.

    • Familiar CON complaint — "any law that impedes my way to power is an ass" — which quaintily avoids the role that the same CON team played in enacting said laws… As the opposition, they huffed and puffed for such obtuse restrictions on the government; but now in government, they can't ignore (or in the case of the set-election date law) or break the rules fast enough.
      Pot, meet mr ethicsforsale…

  4. ''[234] It turned out that RMI booked less broadcast time for the Halifax area than originally
    planned, so the total amount used by the three ridings was less than $52,000.00''

    Did the 3 ridings not get equal broadcast time?
    Did each riding get only the 'portion' of broadcast time they paid for?

  5. Aaron, according to Canadian Press, this wasn't about the "in-and-out" issue, it's about "Elections Canada's claim that advertising expenses attributed to Tory candidates during the 2006 federal election should have been reported as national campaign expenses."… CP's report went on to say:

    "Martineau's ruling had no bearing on a separate investigation into the so-called in-and-out election financing scheme which is still being conducted by William Corbett, commissioner of elections. The Canadian Press has learned Corbett concluded long ago that there are reasonable grounds to believe a criminal offence was committed under the Canada Elections Act."

    • 'The Canadian Press has learned ;'
      beware when the media will not even say 'from sources wanting to remain anonymous',
      the info could have come from the checkout girl at Walmart

      • Well, OK, technically we maybe don't know yet what Corbett has or has not concluded, but he came to enough of a conclusion, of some sort, to refer it over to the director of public prosecutions back in June (who is apparently still deciding whether or not to lay charges).

        So, while we maybe can't say definitively, a la the Canadian Press, that Corbett "concluded long ago that there are reasonable grounds to believe a criminal offence was committed under the Canada Elections Act" I think we can nonetheless safely infer that he came to SOME conclusion, and whatever conclusion he came to, he followed it up immediately with a referral to the director of public prosecutions.

        • I think the point is that these are two different issues: 1) that the advertising expenses should have been reported as national campaign expenses, and 2) the in-and-out caper.

      • Unless said checkout girl says something that benefits so-called leader Harper. Then tweet it!

  6. [240] ………that the candidates
    contravened the Act since it is illegal for one candidate to transfer funds to another candidate (see
    subsections 404.2(2), (2.1) and (2.2)).

    [241] This argument is without any factual foundation.
    (ha)

    So what is the penalty for exceeding expense limits due to a judge ruling that the portion of air time you agreed to pay for , must be divided equally instead of portionately….2 elections ago?

    • Wilson's right. If someone (like, say, a political party) has enormous resources to fight legals battles in court for years, what's the point in punishing them once they're found guilty? If you've got the money and resources to fight a case for more than a decade, we really ought to just let you go afterward, even if you're found guilty.

      • Isn't that the standard practice in actuality?

      • The real punishment comes in the prohibition of a sitting MP from running for election for one term. The same punishment you get when you don't file your expenses on time after an election, whether you win or not..

        I once ran for a school trustee position. Spent no money on the campaign, filed no expenses and was disqualified from running in the next election. I was unaware I had to file a statement of expenses when I had none, but that was no help to me. I should have done my homework.

    • Those wheels turn slowly, eh Wilson? Especially with so much frivolous stuff clogging up the works, but I'm sure the PM has a plan to fix that.

  7. It "effectively limits a candidate's ability to run ads if other ridings in the same (regional advertising) pool are unable to contribute to the same level financially"???

    Wow. That's just brilliant. So, we simply MUST allow candidates with more money to subsidize candidates with less money through unequally distributed regional ad buys, because if we don't, the money of the better financed candidates will… what? Turn in to mud?

    Suddenly, under this scheme, I see candidates in ridings where they have no hope of being elected spending every dime they're allowed on "regional ad buys" (Heck, why even get lawn signs? If you're not gonna win, stuff every dime you can into the "regional" pie to help out your neighbours). Meanwhile, candidates in neighbouring ridings (who may actually win) can throw $5 into the regional kitty, get the same effect of the regional ad buy as their loser neighbours who spent $20,000, and the candidates who have a chance to win can keep that extra $19,995 of powder dry for use within the riding. Seems perfectly fair and within the spirit of campaign finance laws to me. OF COURSE candidates with more money to spend should be allowed to spend it to help get other candidates elected too. If better financed candidates can't pay to enhance the electoral chances of their less well-off fellow party members, do we even live in a democracy anymore?

    It's the kind of logic you'd expect to get from a party who put a bunch of lawyers in a room and ordered them not to come out until they figure out a way to completely subvert Canada's election finance laws.

  8. I'm sorry, I read ahead and started at para 233, which raised an entirely different issue.

    How does one book broadcast time in the Halifax region without transmitting the ads throughout Nova Scotia, New Brunswick and PEI? Even if the ads only ran on CBC anything paid for by a Halifax-area EDA would still be seen in Sydney and Amherst (and Moncton and Charlottetown, but I digress).

    It strikes me that however this onion gets sliced, whatever comes out the other side is going to be a pretty thin rationalization.

    • How does one book broadcast time in the Halifax region without transmitting the ads throughout Nova Scotia, New Brunswick and PEI?

      Pretty simply for NB and PEI: the three big networks (CBC, CTV, and Global) all have regional broadcast/rebroadcast centres in more than one province in the region (CBC in each of the provincial capitals, CTV in at least Halifax and Moncton, and Global in Halifax and Saint John). I'd assume the reason is partially so they can better localize their advertising, as the only difference with the Saint John Global station is that it runs different ads than the Halifax one, but it also likely has something to do with the fact that broadcasting just out of Halifax doesn't work too well. (Back in the day before Global bought MITV they used to only broadcast out of Halifax. Picking it up within NS could occasionally be an exercise in futility back then, and even on a perfect day in NB there was probably at least a bit of snow.)

      Cable, on the other hand, is a different matter — though you've still got the regional retransmission centres switching out the ads for the big three and the rest are either a Rogers' local access (i.e. provincial) channel or even larger national-only networks.

  9. "Ah, it's Kaybeck. Write it off, anyway."

    "Bus to the base, comin' by. Any minute now. Hey Cannon, Paradis, Verneer! Be under it!"

    Despite "04.2(2), (2.1) and (2.2))".

    Vrrrrooom.

  10. That story's a disaster – "fraudulently" is an extremely serious word and, as I read the story, the conduct that Bryden is labelling "fraudulent" was actually found by the court to be permitted under the legislation. I'm pretty sure that the law doesn't view the conduct as fraudlent; otherwise, they wouldn't be permitted to claim the expense. As she says later on "In a case brought by the financial agents for two of those candidates, Martineau ruled that chief electoral officer Marc Mayrand could not refuse to reimburse candidates for their share of the advertising expenses." The bit about a "criminal offence under the Canada Elections Act" doesn't make any sense either – "criminal" offence are those found in the Criminal Code.

    In any event, there are constitutional rules about laws not being too vague for people to understand. While I know nothing about this issue, if the implication was an unexpected and unforseen as seems to be suggested, there may well be an argument on that point.

    • I'm not sure it's all that complicated. It seems to me that what's being said is that candidates can pool money together for regional ad buys that will benefit multiple candidates. What candidates CAN'T do, is arbitrarily assign the percentage of the cost of said regional ad buy to each candidate based on nothing other than how much money each candidate has left to spend.

      In other words, if you have three candidates in neighbouring ridings, they can pool their money to buy some ads that will run across their entire region, benefiting all of them. However, if one of the candidates has $30,000 of spending room left, and the other two each have $5 of spending room left, you can't pool their money together for a $30,000 "regional ad buy" that will benefit all of them, and then just assign $29,990 of the costs to the candidate from one riding, and $5 of the costs to each of the other candidates. That's essentially taking money from the first candidate (who still has spending room left) and transferring it over to the other two candidates (who don't). And you can't do that. And I can't imagine anyone ever really believed that you COULD do that, they just never figured anyone was looking closely enough to notice.

      • What galls me about the Conservatives' behaviour in this and other ways is that they probably congratulate themselves on their own cleverness every time they come up with a scheme such as this. Look at us, they are saying: we are playing chess when everybody else is playing checkers. All hail our strategic brilliance!

        It's the political equivalent of turning left on a yellow light at the instant it is about to turn red: you gain an advantage, but only because others are more conscientious about playing by the rules.

  11. It is very complicated.

    I think at least partially it comes down to intent. Was the intent to buy ads for candidate 1, which then had an unintended spill over benefit for candidates 2 and 3, or was the intent to buy ads for candidates 2 and 3 despite the fact that they had hit their spending limit, by having candidate 1 foot most of the bill. The fact that it seems that the ads were purchased centrally, and then the costs were distributed amongst the candidates based solely on how much spending room they had left, seems to suggest the latter.

    One other complicating factor is that with the Tories, some of the candidates the party attributed the spending too denied buying the ads, so there were actual cases where candidate 1 denied wanting the regional ads, or even knowing that they'd been purchased, despite the fact that candidate 1 was listed as one of the candidates purchasing the ads (which suggests said ads weren't really about helping candidate 1 at all, given that the candidate didn't know about them, and never approved them).

    • When you say it partially comes down to intent, are you referring to something specific in the legislation? It's pointless to discuss this without reference to the legislation. When I read the decision, I didn't get a sense that the intent was important. I understand what you mean in the legitimacy sense; it just didn't seem to be there in a legal sense.

      Interesting that some candidates didn't know they were doing this advertisng. There are pretty strict limits about who can authorize expenditures.

  12. "…jusqu'à dix candidats conservateurs d'alors, dont le ministre des Affaires étrangères Lawrence Cannon, celui des Ressources naturelles, Christian Paradis, celle des Affaires intergouvernementales, Josée Verner et l'ancien ministre Maxime Bernier, auraient excédé le montant des dépenses permises lors de la campagne électorale de 2006.

    Si le jugement est maintenu, les députés accusés pourraient ne plus avoir le droit de se présenter à nouveau à des élections ou même occuper un siège à la Chambre des communes, et conséquemment, un poste au cabinet…."

    (La Presse)

  13. Wonder why the Public Prosecutor's Office hasn't done anything for a whole year.

  14. Those who live by the legally parsed technicality, should also die by the legally parsed technicality.

  15. I don't understand this portion of the judgement was "unpublicized" to now?

    • I would assume that nobody in the media realized the implications until Elections Canada filed something stating that a bunch of MP's exceeded their spending limits.

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