When Marlene Jennings wrote to the director of public prosecutions in April—the letter is available here—she laid out her case as follows.
I base this concern on a possible misappropriation of funds granted to the Crown by the House of Commons through Appropriation Act No. 2, 2009-2010 and Appropriation Act No. 4, 2009-2010. Based on the accompanying Estimates tabled in Parliament by the Government, Parliament approved the use of funds for the Border Infrastructure Fund. However, recent revelations make it clear that the monies approved by Parliament for that specific purpose were instead used to subsidize infrastructure projects in the Muskoka region that have no bearing on international border services. I believe that the stated intent presented to Parliament for the use of these funds cannot be reconciled with their actual use, and may constitute an intentional subversion of Parliament’s authority for the appropriation of public funds. If so, this appears on its face to be a potential violation of s. 26 of the Financial Administration Act, and therefore a willful contravention of an Act of Parliament.
Section 26 of the Financial Administration Act states that “Subject to the Constitution Acts, 1867 to 1982, no payments shall be made out of the Consolidated Revenue Fund without the authority of Parliament.” And on that note, Ms. Jennings points to Section 126 (1) of the Criminal Code.
Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
In defending the government this afternoon, John Baird noted that the interim auditor general had said he was “not aware of any specific law that was broken.” But that, as noted by Joan Bryden, is not everything the interim auditor general said upon releasing his office’s review of the G8 Legacy Fund.
Baird failed to mention that Wiersema subsequently conceded it’s not clear if any laws were broken and suggested it’s not up to the auditor general to make that determination. “I think the legal profession could have an interesting, long debate about the wording of the Appropriations Act and whether or not this was inside or outside of the Appropriations Act. We chose not to go there,” Wiersema said after tabling the report.