- 'In-Out' Scandal - How About 'In with Rationality' and 'Out With Rhetoric'

Posted: 4:35 PM & 4:51 PM on February 27, 2011 The Globe and Mail
Tories dismiss election spending charges as ‘accounting dispute’, Steven Chase, Globe and Mail, Feb. 26, 2011
http://www.theglobeandmail.com/news/politics/tories-dismiss-election-spending-charges-as-accounting-dispute/article1920834/

The first thing to say is, of course, people are presumed innocent until proven guilty. And that applies to this case as well.

In a take-off from Voltaire (apparently) - I may disapprove of the allegations with which you have been charged, but I will defend your right to demand they be proved.


However, I am puzzled at Pierre Poilievre position, which if I understand is that the matter has already been resolved by the Federal Court.

First it is quite curious that these charges would be laid if the defence were simply a question "res judicata" - i.e., the matter has already been judged.

This one one of the most fundamental tenants of our legal system and it is hard to see how even a first year law student would get it so wrong, never mind experienced prosecutors presumably with considerable experience and reputations and careers at stake if they mess up on something if this stature.

Keep in mind that laying charges does not mean guilt and I am not talking about that. What I am saying is, if a Judge has already determined on the matter, then, presumably, they would not be laying such charges.

Second, perhaps Pierre Poilievre could take the rational, objective approach of actually pointing to the charges as laid and pointing to the decision referred to and explaining why the latter precludes the former.

A rendition of the formal charges may be found at:
http://www.elections.ca/content.aspx?section=abo&dir=com/stat&document=charg2011&lang=e

When so doing he should refer to and discuss the judge's statement at para. 268:

"[268] Third, the fact that there is a concurrent criminal investigation underway that might result in charges under the Act being laid against the Party, the Fund or individuals, is not enough by itself to shift the balance of convenience in favour of the respondent or the Crown."

- Callaghan v Canada (Chief Electoral Officer) (20100118), 2010 FC 43, ( Martineau, J., FCTD, T-838-07)
http://decisions.fct-cf.gc.ca/en/2010/2010fc43/2010fc43.html


In other words, it is submitted that the judge was quite aware that there was a criminal investigation but did not feel that his judgement put an end to it.

That, of course, gets to the issue of just exactly what was happening in the court case.

It is very long and complex, but it seems to me that basically the 'equitable' issue was with whom should the disputed funds reside while Elections Canada was investigating and deciding whether to proceed with the underlying matter, whether criminally or otherwise.

The judge, it seems to me, decided that the balance of convenience was with the applicants. It seems that the decisions turned on 'interlocutory' type considerations, which does not necessarily imply a finding of no guilt by the applicant, but more that them having the money while the underlying dispute was being resolved, would do less damage to Elections Canada than Elections Canada holding the money would do to the candidates. Given the nature of the activities (election expenses), as well as the presumption of innocence, it is easy to think that it is better for the money to be with the candidate until the dispute is resolved.

This, to me, is supported by the Court's statement of the issues:

"[61] The question that is now before this Court is whether the respondent can legally refuse to certify for the purposes of reimbursement under section 465 of the Act, the claimed advertising expenses on the ground that he is not satisfied that these expenses have actually been incurred by the applicants or the candidates for whom they act as official agents."

especially when read in conjunction with the above referred to para [268]

Lloyd MacILquham cicblog.com/comments.html

* My sentiments along these lines has been captured by, Harrington, J. (Sloan v. Commissioner of Canada Elections, (20091210) 2009 FC 1264, T-1726-09 at para.1):

Apparently Voltaire never said:

"Je ne suis pas d’accord avec ce que vous dites, mais je me battrai pour que vous ayez le droit de le dire."

It may be that the phrase was invented by his English biographer, Evelyn Beatrice Hall, who wrote:

"I disapprove of what you say, but I will defend to the death your right to say it."