From Elizabeth Thompson's blog:

One of the curious aspects of the whole Elections Canada In and Out investigation of Prime Minister Stephen Harper's Conservative Party is why on earth investigators would have gone all the way to Toronto to get a judge to sign a warrant.

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Some are speculating that it might have something to do with the fact that Justice Ian V.B Nordheimer who signed the warrant was appointed by a Liberal government. Grant you, that's a pretty big pool given the number of years the Liberals have formed government and the number of judges they had to appoint over that time.

I agree with Elizabeth Thompson on that point.  You can't swing a dead cat anywhere in Canada without hitting a Liberal appointee of one sort or another.  The Liberals formed the government for a long time, and one of the jobs they had to do was appoint judges.

If you really think every every Liberal-appointed judge is worthy of suspicion, then why would the Conservatives have been so eager to fight the Elections Canada interpretation of the spending rules in the courts?

The judge in this case, Ian V B Nordheimer, did donate $112 to the Liberals.

Interesting.  Also is the fact that Nordheimer's rulings in 1993 foiled an attempt by David Orchard to prevent the formation of the Conservative Party out of the Canadian Alliance and the Progressive Conservatives.

In 1997, an "Ian Nordheimer" donated to the Progressive Conservatives.

Finding a political link here is unlikely, I think.

But the trip to Toronto is strange.  Is there a link between Nordheimer, and one of the players in Elections Canada -- William Corbett, Marc Mayrand, Andre Thouin, or Ronald Lamothe?

Or maybe looking to Nordheimer is to look in the wrong direction.  The question is not why Nordheimer was approached to sign the warrant, but why an Ottawa judge was not.

Was there a concern that the Ottawa judges, more attune to politics and to the dynamic between Elections Canada and the Conservatives, would have given the warrant a much more thorough going over?

And while I'm engaged in groundless speculation, maybe that already happened.  Maybe the warrant was reviewed and rejected.  Instead of going back with a better warrant, Elections Canada drove four hours to find another judge who would not likely to know about the first attempt at a warrant.  Once one Ottawa judged rejected a warrant targeting the Conservatives, it is likely every judge in Ottawa would have known about it.

If that is the case, then that is very bad.  It's called "judge shopping" and it is reason enough to have a warrant thrown out:

• Judge shopping is an evil as it erodes the publics' confidence in the administration of justice [Scott, W.L.; SCC].
• "Given the circumstances, the only two options available to the Constable were to abandon his application or do some more work to strengthen the factual grounds underling his application. The Constable chose neither of those options. Instead, he pressed ahead with the same application before a different justice notwithstanding the prior refusal. The fact that he did so leads me to infer that he was prepared to seek out a second and more favourable opinion on his application, even though he knew that it was improper to do so. Search Warrant quashed [Nguyen, X.T.; aka X.T.N.; BCPC].
• When the applicant has an application rejected and adds a reference to case that he feels is relevant, and then takes it to a second Justice of the Peace, who approves the same, the search warrant is invalid. The proper course of action would have been to have the first Justice of the Peace review the case. [Chan; [2003] O.J. No. 188; OSCJ]."
• "It would, of course, be improper for successive applications based on the same ITO, to be brought before different justices of the peace. One justice of the peace has no jurisdiction to review the exercise of discretion of another" [Eng, M.B.; BCCA and Colbourne, A.T.; OCA].
• Noting that there is no appeal process in the Criminal Code regarding rejected search warrants the BCCA held that there is nothing wrong with applicants reapplying before another judge or justice of the peace provided that:
  • the applicant advises the 'new' judge or justice of the peace that the application had been previously denied,
  • stating the reasons in writing why the previous judge or justice of the peace denied the application, and
  • providing reasons in writing why the applicant disagrees with the reasons for the denial
• in Duchcherer, D.E.. The Court went on to note that Judges and Justices of the Peace have equal jurisdiction in regard to search warrants, and that a new application with written reasons stating why the applicant disagreed meant that the application was fresh and required the exercise of judicial discretion and was not a form of appeal. It is important to note that the reasons given in writing must be substantive - in this case one line did not suffice. [X.T.N.; BCPC] While there is no statutory right of appeal the common law appeal routes still exist (IE. certiorari or mandamous) [Du, B.B.; ABQB and Martint; [1977] 33 C.C.C. (2d) 366; ABCA].
• The applicant should clearly identify that a previous application had been denied [Bui, M.C.; OSCJ]. However, "I therefore conclude that "judge shopping" for a search warrant, even with full disclosure of a previous refusal, constitutes a breach of s. 8 -- albeit in this case, because the law in Ontario is not yet settled, it was at most a marginal breach [Park, S.; 2007 CarswellOnt 6528; OSCJ]."

Note that there is not a shred of evidence that Elections Canada officials were engaged in judge shopping.  All there is is a strange trip to Toronto.

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