Angry in the Great White North

Welcome National Newswatch, Jack's Newswatch, and Bourque readers: Just by way of clarification, I'm not stating categorically that Elections Canada threw the manual out the window when their investigators went into Conservative Party headquarters with a search warrant.  I am pointing out that the manual requires for elaborate record taking and a concerted effort to get specifically identified documentation from someone suspected of breaching the Elections Act.  This seems to be at odds with what the Conservatives are saying, which is that Elections Canada was given documentation when requested, that no requests had come for some time, and that when the search warrant was executed, the office and the computers were essentially emptied of any and all information, regardless of its relevance to the in-and-out funding controversy.  Indeed, it is not clear that Conservative Party officials were officially cautioned that a court order would be used to seize documentation, a caution that is required by the Elections Canada Investigators' Manual.  Such cautions might have been provided, but the Conservative Party position is that there has been no significant contact with Elections Canada for some time.

You can download the Investigators' Manual prepared by Elections Canada.  It is actually rather interesting.  But of particular interest to me are the sections regarding the gathering of evidence:

Where, during the course of an investigation by the Commissioner’s Office, additional financial information in the suspect’s possession is required, other than what must be disclosed under the Acts, the suspect will be administered the official cautions to ensure the admissibility of such information turned over voluntarily by the suspect. If the requested documents are not forthcoming, it will be necessary to proceed via a search warrant.  The Investigator assigned to the case will act as the informant.

Now according to the Tories, no one from Elections Canada has made requests for months now.  Were there requests made for financial documents?  Did officials from the Conservative Party refuse to hand them over?  Were party officials officially cautioned about the consequences of refusal, up to and including search warrants?

If the financial information included information for individuals, in particular, for candidates, were the candidates consulted?  Presumably they had copies of some of the information desired.  Was each one approached, interviewed, cautioned, and then refused to divulge information?

If there was no request, then there could not have been a refusal, and then there should not have been a search warrant:

It is the suspect's prerogative to refuse to produce or remit documents. In such cases, Investigators must advise the suspect that they accept the decision and record the matter accordingly in the statement report. They should also advise the suspect that the matter will be reported to the Commissioner who may consider requesting a court order to obtain access to these documents.

I guess there is a statement report to support the search warrant as a necessary means by which to get the information.  The statement report would include the names of the persons who refused to hand over the documentation and the warnings that they were given. But then you'd think the Conservatives would have remembered all those interviews and scary cautions and detailed note taking.

So what can the investigator request when it comes to documentation?

5.4 Election documents

“Election documents” are defined under section 2 of the Act and includes all the papers, which must be transmitted to the Chief Electoral Officer by the returning officer after an election.

5.5 Other documents

“Other documents” mean the various statements, books and records relating to an election campaign and which may be required for the investigation of an alleged infraction. This includes:

a) deposit slips, cancelled cheques and bank statements evidencing campaign expenses;

b) details of bills and vouchers related to the payment of campaign expenses;

c) list of contributions of goods and services;

d) statements and documentation supporting personal expenses of candidates;

e) loan agreements and repayment schedules, unpaid claims and judge's order for the payment of unpaid claims;

f) records of contributions and official income tax receipts issued and recorded in the candidate’s return;

g) documents to support a judicial recount;

h) auditor’s report, declaration of the candidate, leadership or nomination contestant and the official or financial agent.

Funny, but I don't see reference to privileged documents between the suspect and his legal counsel on this list, but more on that later.

OK, so let's say that the Investigators begged and pleaded and cajoled for access to the documents, in direct contradiction to what the Conservatives say.  What then?

Well, first, the Investigator has to provide three cautions:

After completing the procedures laid out in sections 7.1 to 7.4 of Chapter 7, the suspect must be warned of the right to be secure from unreasonable search and seizure by stating the following official caution:

You are under no obligation to produce documents (describe each one with sufficient details to be retrievable) and you are free to provide me access to these documents if you so wish. Do you have any question?

Investigators must ascertain whether the suspect understood this right and, in case of doubt, they should continue explaining until satisfied that the suspect does understand before proceeding any further.

Investigators must record in the statement report any answers provided by the suspect and any additional information or explanation offered to the suspect. Then, Investigators must continue the proceeding as described in sections 7.5 to 7.7 of Chapter 7 and issue the other three official cautions.

If each of the 65 candidates involved in the investigation and each of their official agents are suspects, then presumably they were each interviewed and asked to hand over documentation, and cautioned about the implications of cooperating, or not, with the investigation.

Remember those legal documents seized by the investigators?  The ones prepared by Conservative Party legal team for the civil suit?

Investigators should be aware that while lawyers’ offices are subject to search and seizure, they enjoy certain privileges with respect to documents for which a claim of solicitor-client privilege has been made.

The procedures to obtain a search warrant to search a lawyer’s office and seize documents is fully set out in section 488.1 of the Criminal Code which Investigators should refer to if such a situation arises. It would be the responsibility of the ad hoc agent retained by the Commissioner to ensure the proper procedures are followed.

What does 488.1 say?  You can read it for yourself, but basically control over privileged documents is given to a judge.  The documents are supposed to sealed and no one is supposed to look at them.  No word on whether the boxes of documents in support of the civil suit are being treated as privileged.

And no explanation on how a list of questions to ask Elections Canada officials about how they make a distinction between local and national ads for different political parties falls under the list of "Other Documents" that an Elections Canada investigator is allowed to take.

The manual makes it clear that there is expected to be a great deal of up front interviewing, record keeping, cautioning, and so on, before the step of applying for a search warrant is taken.  This seems at odds with what the Conservatives have said, which is that Elections Canada has said little for months now, and has made no requests for additional documentation.

Check out other entries from the In-and-Out category
Results will open in a new window.