Go to Stephen Taylor's blog, and lull yourself to sleep by examining the hundreds of pages in the Elections Canada appendices that supported the application for a search warrant.

Come back when you're done.

OK, now what you noticed was page after page of receipts and Elections Canada returns, plus a few emails between Elections Canada officials and Conservative Party officials concerning the legitimacy of the in-and-out funding mechanism.

Boring?  You bet!

But here's the one thing about these appendices that I find really interesting.  There is no documentation outlining any discussions with Conservative Party officials.

This goes back to that manual that defines how Elections Canada investigators are supposed to do their job.

Here is the relevant portion:

6.3 Procedures to access documentation from a suspect

Where access to documentation from a suspect is required, Investigators should proceed as follows:

The right to be secure against unreasonable search or seizure

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.

6.4 In case of refusal

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.

The warrant does outline that a number of structured interviews took place.  These interviews were with:

• senior officers at Retail Media
• 14 of the 67 candidates and/or their official agents
• an Elections Canada auditor

Clearly the Elections Canada auditor is not a suspect, and the Retail Media people are not likely to be classified as suspects.  That matters because the interview format for a "suspect" includes the cautions and references to search warrants:

As far as I can tell, nowhere in the warrant application is there mention of a request for documentation held at Conservative Party headquarters, nor of such a request being refused, along with a warning that refusal is grounds for obtaining a search warrant.

Indeed, none of the interviewees are named as "suspects".

You'd think that being refused access to documentation would strengthen a warrant application. 

None of the interviewees are officials at Conservative Party headquarters.  The people interviewed would would not have had access to the documentation or to the files on the servers at headquarters.   There is no mention of officials at headquarters being offered the opportunity to produce the documentation willingly, but only after being told that there was no obligation to provide this documentation, as per the process outlined in the manual.

Maybe the trip to Toronto makes sense now.  If an Ottawa judge who knew the ins and outs (pun!) of the Elections Canada investigative process had gotten a hold of this warrant application, might he not have asked for evidence that the investigators had attempted to gain access to the documentation through the structured interview process?  Might that judge not have then asked if there was an explicit refusal to deliver that documentation, and that the person making the refusal was cognizant of their right to refuse, of the possibility that a warrant might be obtained in case of refusal, and of the right to seek legal counsel before making the decision?

If this Ottawa judge concluded that these steps had not been taken, would he have refused to sign the warrant, compelling the investigators to ask for structured interviews with Conservative Party officials at headquarters?  Maybe Elections Canada officials wanted to avoid that possibility.  Instead of risking having their warrant application turned down, they bundled up all 700 pages and drove to Toronto to find a judge who is a specialist in commercial law:

Justice Ian V. B. Nordheimer is a judge of the Ontario Superior Court of Justice, having been appointed to the court in April 1999.  Prior to his appointment, Justice Nordheimer was a partner in the Toronto office of Fraser Milner Casgrain LLP specializing in commercial litigation.

Does it matter that the application for the warrant makes no mention of the Investigators' Manual?  Would a judge have wanted to know if all the internal checks and balances at Elections Canada had been followed?  Would Justice Nordheimer had known to even ask? 

I'm not sure what this all means.  Even if shortcuts were taken and steps omitted, the manual does not have the force of law.  If Elections Canada has decided to forgo certain stages in its process, that's really up to them, I think.  But it does add weight to the suspicion that Elections Canada is treating the Conservative Party as a special case, applying special rules and using a special investigatory process.  The trip to Toronto might just be a hint of that.

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