Elections Canada - Having problems interpreting the law

Looks like there may be someone else besides the CPC and Gerry Nicolls that has a difficult time accepting the notion of Elections Canada as some kind of infallible deity.

Licia Corbella describes her own run-ins with 'that independent government body' - Chief interpeter can't even interpret election ad laws (H/T to reader Frmgrl):

...The first three agents at Elections Canada's head office in Ottawa had never even heard about the advertising law and told me to call a 1-800 number.

When asked if it would be legal for me to pay for such an ad, one agent said: "Sounds fine with me. It's your money. You should be able to do whatever you want with it."

I agreed with her wholeheartedly. "So is that your answer?" I asked. "This is kind of important. After all, if I interpret this wrong, I could go to jail and get a criminal record."

That stumped her. Eventually, after being put on hold and speaking to close to one dozen Elections Canada staff members, most of whom didn't even know about the law, I was put through to a polite Elections Canada lawyer, who after a long conversation told me that he couldn't give me legal advice, just "legal information." His advice, or "information"? To hire a lawyer to figure it out. I'm not making this up!

( . . . )

While giving his evidence in chief, Kingsley said "third-party" individuals or groups had to be limited to spending no more than $3,000 in any given federal riding to a maximum of $150,000 during the election campaign or face criminal charges, large fines and even jail.

But when he was asked to interpret various scenarios -- like the one I presented to Elections Canada officials during the 2004 federal election -- he was unable or unwilling to interpret the law he says he helped frame and of which he was the self-described chief interpreter and enforcer...

And she gives her opinion of the current brouhaha:

...Just days after the election began, Andrew Kumpf sent an e-mail to Conservative party officials, wondering if the proposal to have Retail Media place ads on behalf of local candidates would violate the Canada Elections Act: "While our thinking is that this option would be legal, we are not certain beyond all reasonable doubt."

Is anyone? If the Tories sought clarity on election advertising from Elections Canada, like I did and the court did, they very likely got conflicting information, ambiguous information, no information or some "legal information" to call a lawyer.

The New Democrats did virtually the same thing as the Tories during that election campaign -- that is, they used national party funds to run national ads with just a local tagline at the end of the ad promoting the local candidate.

But Elections Canada hasn't raided the NDP's headquarters or the Liberals, who have engaged in the same practice in the past...

Wherever the truth may lie, the opposition parties will pursue this one as long as they can. However, I hardly think it has the impact of the sponsorship scandal on Joe Blow Canadian.

He's more concerned about his gas and food prices going up while his job disappears.

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Update: Just watching MDL. Did anyone else hear Buzz Hargrove suggest that the government can change the exchange rate? i.e. lower the value of the looney?

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Steve Janke has several great posts on the Elections Canada story:

Elections Canada Investigators' Manual

Elections Canada warrant makes no mention of interviews with senior Conservative officials

and Four questions concerning the search warrant.


And from the Colonist - Tory ads legal, organizer claims.

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BIG FRIDAY UPDATE: Actually, the Tories might have a point - Ottawa Citizen.

...What in there (Election Act) says local spending must happen locally or concern local issues? I see nothing.

Of course the courts might not agree with my interpretation. Or they may say the Tories did a legal thing but in a carelessly illegal way; one Liberal staffer suggested to me that the central problem was that local candidates did not technically "incur" the costs in question. Even if true, that claim hardly justifies Liberal MP Dominic LeBlanc's reference to "an Enron-style accounting practice" at a Thursday press conference...

Things that make you go Mmmm....

Fellow traveller ChuckerCanuk pointed me in the direction of this little nugget by Elizabeth Thompson.

It may shed some light on why Elections Canada went all the way to Toronto to get a judge to sign the warrant. As she said, it obviously wasn't done in order to keep it a secret:

...The folks at Elections Canada were most helpful in letting the media know where the warrant was to be found. Can't be to save gas. The Toronto court house where the warrant was issued is a four hour drive from Elections Canada's HQ which is just a quick walk from the Ottawa courthouse...

Read the whole article for the missing link.

There may actually be something to the conspiracy theory.


(At the very least, Elections Canada is guilty of not shopping locally.)

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Update: Harper says Tories followed spending rules - CTV.

Steve Janke - The Toronto judge and the warrant.

Stephen Taylor has an excellent post up - The Elections Canada Raid (supporting information and Conservative response). Alex Panetta had some nice words for Stephen tonight on MDL.

The air needs to be cleared

Yesterday's bizarre spectacle (as reported by MSM) of the CPC giving only certain members of the media an advanced briefing on the contents of the Elections Canada warrant, and then escaping down the fire stairway to avoid others, is not likely to help further the Conservatives' case in the court of public opinion.

However, there are still a few lingering questions that need to be answered honestly, and without spin from either side:

1. Did the CPC comply with all documentation requests from Elections Canada or not? If the latter, then let's see the evidence. EC should be able to demonstrate exactly which requests went unanswered. If the former, then the 'raid' on Conservative HQ looks very suspect - especially in view of the civil suit launched by the CPC against EC.

The Star reports that "the Conservatives insist they have done nothing wrong and say they were taken aback at the raid last week because they have complied with all requests to turn over documents."

But in the affidavit, Lamothe alleges the federal Conservatives embarked on a deliberate strategy to thwart election financing laws – and the party's spending limits – and to claim $700,000 in rebates for advertising expenses to which local candidates were not entitled.

Lamothe sought hard-copy and electronic copies of correspondence, emails, invoices, accounting records and other documents that would outline discussions between Conservative officials and its media production and buying agencies Retail Media, Yield or Yield Integrated, Republic Publicité + Design Inc.

2. Did EC cart away documentation from the civil case or not? There are conflicting reports. If so, why?

Investigators lined 16 or 18 people up along a hallway, one party official said, "like we were going to shoot back? I mean they had ... unfettered access to every single thing in Conservative party headquarters. They removed 17 boxes of material specific to our lawsuit, all the background stuff."

"They took away our tactics and our strategy" for the court case, said the official.

He also said the raid went well beyond the scope of the warrant, with investigators gathering information that had nothing to do with the issue.

"What does my computer and what's on there about the next campaign strategy, the next platform, the next ad campaign, and everything else, what the hell has that got to do with Elections Canada?" another official said.

"This is absolutely over the top."

Much of the seized material is likely to be the subject of legal arguments over whether it is subject to solicitor-client privilege.

3. Who tipped off the CBC (and likely the LPC) about the RCMP 'raid'? Why?


One thing for sure. Nobody's going to come out smelling sweet on this one.

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Update: Oh-oh! Somebody's nose must be out of joint (via Kady O'Malley):

...I can confirm that macleans.ca was most emphatically not welcome on the voyage. However, being unable to take a hint, we wound up hanging out in the hallway outside the backup briefing room - hastily arranged after word of the first meeting was leaked - with various other uninvited media guests: CBC, Canadian Press, and the Halifax Chronicle Herald and CanWest News, which had, in fact, originally been on the list, but was abruptly disinvited when the Conservatives realized who had been sent to cover the story...

Now I wonder who that could have been?

More sour grapes here.


Also, please check out Peter Csillag's excellent post - Don't read the MSM lips, no new election over RCMP raids.

Sandy has a great post here - Communications 101 for the Conservative Party.

Trusty Tory wants to go on the offensive - Where's the counter attack??

Elections Canada - Above reproach or undermining free speech?

Steve Maher's featured again on National Newswatch - this time with a somewhat more relevant piece than a previous one...

Today's column (Tories may only have succeeded in making themselves look bad) is fairly well-balanced, with plenty of scorn for both major parties in Canada. However, I find this paragraph disturbing:

...The Harper team instinctively attacks opponents, which is good politics, since it forces political rivals to spend half their time defending themselves. When the Tories go after independent officials, however, they look dishonest and mean, since to believe them, you are asked to believe that independent officials are corrupt. The standard of proof for that is higher than anything the Tories have offered...

Contrast that with David Frum's excellent editorial in today's Post - Elections Canad's campaign against free speech:

Yesterday on this page, Gerry Nicholls accused Elections Canada of being a power-crazed bureaucracy motivated by petty vindictiveness.

That's the optimistic scenario! Power-crazed bureaucrats can be restrained or replaced.

The more frightening possibility raised by this week's RCMP "visit" to Conservative party headquarters is that the Canadian bureaucracy has once again revealed a deep, sustained and highly ideological hostility to ordinary rights of free speech...

Frum goes on to outline how some of our supposedly non-partisan Canadian institutions like Elections Canada and the CHRC are undermining political free speech, and political freedom by extension! Please read the whole thing and then save it for future reference.

Canadians need to take off their rose-coloured glasses and take a critical look at those hallowed institutions that we seem to have placed on a pedestal. They are run by human beings.

And as such, they are not above constructive criticism and monitoring.

* * * *

Update: Check out Gerry Nicholls - Elections Canada vs. Free Speech.

Also see Dr. Roy - George Jonas on abolishing HRCs.

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Sunday Update:

Dr. Roy's found another good one here - The myth of the level playing field by Lorne Gunter.

This could quite possibly win some kind of award as the most objective editorial of the year. Lessons for everyone here.

Something stinks in Ottawa

Not a lot of time for blogging today, but Steve Janke raises a good point - "If the search warrant was leaked..." (H/T to Frmgrl in comments).

On the question of a leak, Gerry Nicholls has an op-ed in the Post - Revenge of the Elections Canada Bureaucrats. This is one scary horror story! Every Canadian should be concerned. It questions the impartiality of EC.


Finally, please focus your attention on the hyperbole in this editorial by The Ottawa Citizen's Susan Riley - New cast, same script:

...As for the latest contretemps -- RCMP raids this week on Conservative headquarters over alleged campaign financing irregularities -- Harper may be saved this time by complexity. Conservatives are accused by critics of getting around spending limits on national campaigns by filtering at least $1 million through local riding associations. The opposition says this amounts to money-laundering. Conservatives say it is perfectly legal and that Liberal MPs do the same thing. "Why are (only) Conservatives not allowed to talk about their national leader and national policies in an election," House Leader Peter Van Loan complained yesterday, a textbook example of the avowedly transparent Harper government's sophistry.

Adding confusion, we don't know yet if the RCMP is chasing this so-called "in-and-out" accounting trick, or some other misdeed. In any event, the details may be lost in Conservative side attacks on Liberals, the CBC, the RCMP, and anyone else who questions. This may be good for the Tories, but it is bad for politics. Rather than turning to an alternative party, what if more voters -- finding none -- turn off politics altogether?

Note the use of RCMP raid and RCMP chasing...

Now if you recall, it was the RCMP themselves who said they were there to merely provide assistance (and possibly even oversee the execution of the warrant so that EC didn't overstep their boundaries):

RCMP commissioner Bill Elliott said the RCMP has a "longstanding memorandum of understanding" to assist Elections Canada, and insisted his officers were simply complying with a request.

This is NOT an RCMP raid, nor is it an RCMP investigation!!!

And yet Ms. Riley has the gall to lecture us on ethics.

* * * *

This is puzzling too - Seized papers linked to lawsuit by Tonda MacCharles (H/T National Newswatch):

After a two-day search of files and electronic databases at Conservative party headquarters, Elections Canada seized material related to the party's "media advertising" in the last election.

At least some of the material that was carted or wheeled out Tuesday and Wednesday by RCMP officers assisting Elections Canada investigators was the basis for the party's planned questioning of elections officials in the lawsuit challenging their interpretation of campaign financing rules.

Included among papers and emails seized or downloaded were all of the party's documents, including a series of indexed binders of Elections Canada records, related to the Conservatives' challenge in Federal Court of the agency's decision to disallow rebate claims involving some local campaign advertising expenses in the 2006 election, according to a document obtained by the Star...

So, in spite of the Liberal party's vehement denial that this had nothing to do with the CPC court challenge against EC, which coincidentally they were due to deal with the very day after the "raid", we find out that some of the material seized did in fact have to due with that case. The Liberals kept saying they were two different issues.

Can someone please explain to me how a one party involved in a legal suit could go into the premises of the other and take away their documents relating to the court action?

Maybe I'm missing something here.

Does Elections Canada have 'an agenda'?

Just how 'non-partisan' is Elections Canada?

The fact that Gerry Nichols who is usually a thorn in Harper's side, actually backed up the Conservative Party yesterday with this post, is probably one of the most telling indicators of where the truth actually lies.

Gerry pulls no punches. And the Globe seemed impressed enough to report on his observations this morning.

Yesterday, on MDL, Garth Turner kept referring to things not passing the smell test. (Great post, Sentinel).


Well, I think something just reeks. Why were the CBC, and the Liberal party first off the block with this story? Does the NDP not watch Newsworld? Some reports have certain suspects actually waiting for the RCMP and Elections Canada to arrive. Jason Kenney said as much on the aforementioned MDL clip.


Don Martin discloses the following observations:

...The real interesting part, which has a lot of Conservative MPs in a lather, is how two camera crews magically surfaced to stake out both floors rented by the Conservative party within minutes of the search warrant being executed.

The RCMP cruisers were unmarked and the police scanner didn't broadcast the "visit," so unless CBC journalists are telepathic, the only plausible explanation is that they were tipped by Elections Canada.

And being dedicated Newsworld watchers, gleeful Liberals armed with their own cameras were scrambled to record the "visitation" within minutes of the news being broadcast...

He also calls Elections Canada's actions "heavy-handed".


A comment at Warren Kinsella's blog caught my attention:

...And André Thouin just happens to be an ex-RCMP officer.

I believe the RCMP, the Liberals, and the media were there so early because Mr. Thouin arranged it so. The weapons and flak jackets make no sense at all, except to draw attention to the fact that these were no mere Elections Canada lackies. Whatever the case, it was well played. And clearly a "PR stunt" by EC.

There's nothing wrong with calling it like it is.
Sitsonsix | 04.16.08 - 7:37 pm

Canadians need to be reassured that such a vital institution as Elections Canada actually is non-partisan. Our democracy depends on it.

The optics sure aren't comforting.

Was it a setup for a photo-op?

The Toronto Star reports:

...A videographer hired by the Liberals was present as the raid was carried out, alongside mainstream media camera crews documenting the incident...

It doesn't sound like they just happened by, does it?

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From CNEWS - Tories attack Elections Canada over raid.

Elections Canada made a media "circus" out of a raid on Conservative party headquarters, inviting an opposition camera crew to observe police officers carrying out the raid, Tory MPs complained Wednesday.

The Liberals laughed off any suggestion that they were tipped off in advance of the raid, which appeared to be continuing Wednesday, saying they sent a videographer to the Tory party offices after seeing the event unfold on a television news network...

..."I do find it odd, when I look at a photograph this morning and I see someone knocking on the door with cameras, with news cameras present," Flaherty said as he left a Conservative caucus meeting on Parliament Hill.

"And to see that there were Liberal party people in the hallway, I find that very strange indeed."

( . . . )

A videographer hired by the Liberals was present as the raid was carried out, alongside numerous mainstream media camera crews documenting the incident.

Now who are you going to believe?


Stephen Taylor - Something isn't right about the RCMP "raid". 'Catherine' in comments says:

Stephen, maybe someone should correct Garth Turner's statement on Mike Duffy live, where he stated the CPC "stole" Canadians tax dollars.

Link here. In the same interview, Jason Kenney marvels at how a Liberal party official was there ahead of the RCMP and Elections Canada.



National Post - Elections Canada leaked news of RCMP raid, Tories said.

Don Martin - Elections Canada brings out the sledgehammer.

Things aren't much better in Canada

Brenda Martin shouldn't be so anxious to get back here. In the court of political and media rhetoric, Canada isn't far behind Mexico in the concept of guilty until proven innocent.

The headlines from yesterday's story have run the gamut from RCMP called in to help search Tory offices, all the way to RCMP raids Tory office in election probe.

Never mind that the RCMP clarified the situation as follows (RCMP raid a 'PR stunt', Tories claim):

...RCMP commissioner Bill Elliott said the RCMP has a "longstanding memorandum of understanding" to assist Elections Canada, and insisted his officers were simply complying with a request...

Whatever that means. However, it wasn't a 'raid' by the RCMP. But as noted in the previous post, the hyperbole and torqued headlines are spinning around the world.


The political rhetoric is also astounding. From the Liberal website:

The RCMP raid of Conservative Party headquarters is proof that Prime Minister Stephen Harper must explain to Canadians about his party’s alleged involvement in deceptive financing practices during the 2006 federal election, the Liberal Opposition said today.

Aha. They learned from the last time and added the word 'alleged'. But if this was only some assistance that the RCMP was providing to their old buddies, Elections Canada, then the preceding paragraph seems a bit contrived, n'est-pas?


And Michael Ignatieff self-righteously proclaims:

“How did it get to this? An RCMP squad raiding the offices of the Conservative Party - spinners in frantic damage control,” said Mr. Ignatieff. “I mean, how did we get here? Why did Elections Canada have to get a search warrant and the help of the RCMP in the first place? Why did they have to pry information from this government's clenched fist?”

Mmmm.... How did it get to this, Michael?

Do you think those camera-toting colleagues of yours who were descending like hungry vultures and greedily snapping photos for future ads have any idea either?



Anyway, don't rush back, Brenda. It isn't a whole lot better here either.

* * * *

Update: Via Steve Janke, Adam Radwanski weighs in with "Subtle as a Sledgehammer".

Cherniak - In and Out of the printing press. In his dreams.

I left a comment. Wonder if he'll publish it.


Tories say Liberals were tipped to raid - Star:

...A videographer hired by the Liberals was present as the raid was carried out...

But CBC's Newman said just before QP today, that they must have seen it on the news, and decided to drop by? C'mon.

* * * *

Update: Don Martin - Elections Canada brings out the sledgehammer:

...with footage in the can and a campaign script that writes itself, this is no longer an issue of guilt or Conservative innocence in the showdown with election officials.

That's the beauty of securing a conviction in the court of public opinion -- optics, hearsay and circumstantial evidence can instantly gas chamber the innocent with no avenue of appeal.

And on this particular count, shots of warrant-bearing cops wandering the headquarters of the allegedly clean Conservatives are Tory tarnish and Grit gold.

This is why I find Election Canada's behaviour somewhat squeamish. Nobody can recall such heavy handed behaviour before and there's no explanation why police were required when a phone call might have sufficed.

The Conservatives insist they'll have their day in court and argue convincingly that Elections Canada will be proven wrong. There's documentation suggesting the other three parties are not without sin at the ins and outs of creative campaign financing...

With friends like Elections Canada... With Update

Elections Canada is not backing down:

Marc Mayrand, the chief electoral officer, said the current legislation offers several ways of voting that does not include photo identification. That includes mailing a vote, a method more than 80,000 voters used in 2006, he said.

"This special procedure supposes that there is absolutely no visual contact between the voter and Elections Canada staff," he said.

Nonetheless, he said, voters will be asked to visually identify themselves. However, if they choose not to and can provide other information to verify their identity, they will still be allowed to vote.

"I have not amended the act to say that she must unveil her face," he said. "It is up to the voter to decide what procedure to use."

Meanwhile, some Muslims are wondering where this all came from and may even be concerned about a backlash:

Alia Hogben of the Canadian Council of Muslim Women agreed with the Prime Minister's position, and said too much was being made of the veil issue.

"I think he's right, I think for something like elections ... women would be happy to show their faces, I don't think it would be a problem," Ms. Hogben said. "I think it's being made into a problem and it doesn't need to be."

"For us the sad thing is it's always focusing on Muslims and as far as I know it wasn't a request made by Muslims," Ms. Hogben added. "It probably came up[from] Elections Canada-- with good intentions thinking they would try to accommodate people--but I don't think it's necessary."

Not necessary, and extremely divisive.

I know some folks are immediately going to call me up here on John Tory's faith-based funding suggestion, and try to draw a comparison.

Well, let me tell you. One is about fairness and the other is about national security.

One is actually been an on-going issue for quite a while for a number of minority religious groups, and the other was just pulled out of a hat by Elections Canada, based on Mayrand's interpretation of the legislation and thereby blindsided all federal parties and their leaders.

But yes, they may both cause some bigotry and needless tension, and that is what we must guard against.

* * * *

Bonus: Red Tory's 'Conspiracy Theory' gets shot down!

Well good on him for admitting his paranoia anyway.

* * * *

Update: Please note that the first line of this post differs from the original published this morning.

Lord Kitchener's Own sets us all straight on this matter:

Parliament wrote an election law with a hole big enough to drive a truck through. It's not Elections Canada's responsibility to throw up a roadblock after the fact. In fact, they specifically SHOULD NOT be doing so. Elections Canada FOLLOWS the law, they don't write it, and it's the fault of Parliamentarians if they wrote a law that doesn't actually do what they (they now claim, after the fact) apparently wanted it to.

So, it really is the fault of Parliament. Elections Canada is simply following the letter of the law. Good work, LKO. Thanks for the clarification.


We're paying taxes for this?

* * * *

And still the 'Conspiracy Theory' continues...

More at CBC.

Phantom Observer spells it all out here.

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Tuesday Update: Ivison - Chief electoral officer free to do as he pleases.