Angry in the Great White North

The In-and-Out story is back in the news.  The Globe and Mail has retrieved information from Elections Canada that shows that Elections Canada was working the spin as hard as the Conservatives:

In the days after the high-profile raid in Ottawa, the Tories charged that Elections Canada had ignored similar electoral ad spending transgressions by the opposition, and told the media and Liberals about the raid to maximize political damage.

"With regard to this allegation of [a] leak do you have any suggestion as to how we could kill it?" Mr. Mayrand asked in an e-mail dated April 18.

"If we can dispel this story [the leak], we will have only positive media coverage," replied Ms. Vézina, the associate deputy chief electoral officer in charge of political financing. "And the alternative is that we appear to be partisan or biased or vindictive and at the moment the media seem to believe we tipped off the CBC and the Liberals."

Part of the spin control involved alternative media, and in particular, bloggers.  When the "raid" on Conservative Party headquarters was all over the news in April, bloggers were all over the story.

And yet of all the hundreds of stories penned by bloggers, only three were discussed at Elections Canada.

One was a post by Gerry Nichols, formerly of the National Citizen's Coalition, posting at the Western Standard.  Another was by reporter Dan Lett posting at the Winnipeg Free Press blog page.

The third was mine.  I'm not a reporter.  I don't publish at a site associated or affiliated with a newspaper or magazine.  I'm running a pure blog.

BOOYAH!!!

OK, enough of that.

So what did I write that caught the attention of Elections Canada?

It was the post about the Elections Canada Investigator's Manual.  I covered a lot of ground, including the question of whether the Conservatives were warned about the possibility of a search warrant (these warnings are required by the manual), and what sort of information is fair game.

The folks at Elections Canada didn't seem to care about that.

They were only concerned with the issue of how to handle privileged documentation.

Here is an excerpt from that post:

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.

Here is the email exchange that took place within Elections Canada as retrieved by the Globe and Mail:

Susan Torosian, Director of External Relations:

You should read this blog. 

A blogger uses the Elections Canada Investigator's Manual to indicate that any documents classified as privileged would be controlled by a judge.

Johanne Gauthier, General Counsel for Elections Canada:

I did and the blogger didn't understand that it is the way it works when you are conducting an interview of a suspect who wants to give documents to the investigator(s) during the interview.

The emphasis is as per the original emails.

There are a number of interesting points.

First, Susan Torosian is absolutely right.  You should read my blog.  BOOYAH!!

Sorry, couldn't help it.

Second, I'm puzzled by Gauthier's response.  Gauther seems to be saying that if a suspect offers up documents during an interview, the documents go straight to the court for safekeeping.

That doesn't make sense.  If I'm a suspect and I offer you documents I have been exchanging with my lawyer, then obviously I'm waiving privilege.  Why do the courts need to be involved?

Perhaps I'm reading his email incorrectly.

In any case, the manual refers to documents being recovered during a search of a lawyer's office as being privileged and under the control of 488.1 of the Criminal Code.

That section of the Criminal Code, however, does not make specific reference to a lawyer's office.  Instead, any documents in the possession of a lawyer, if seized, must be sealed without examining the contents and handed over to the courts (in the person of the sheriff) for safekeeping.

Possession?  Does that mean the lawyer is holding on to it?  That would be silly, since it would mean if a lawyer put the document down and took his hand off of it, it would be fair game.  Does the lawyer need to be in the room with the document?  Looking at it?  Aware of exactly where it is in order to be counted as possessing the document?

Or is it merely a matter of clearly labeling the document as material sourced from, or belonging to, a lawyer or his office?

Honestly, I'm not sure.  Maybe "possession" does mean literally in the lawyer's office.  If I'm a client in a fight with a government organization with quasi-legal powers to apply for search warrants, and I take a document written by my lawyer for my use in a legal proceeding out of the office, then I am open to having that document taken by my opponent if my opponent uses its powers to secure a search warrant.

Weird.

Well, regardless of my understanding of 488.1, and whether the phrase "in the possession of a lawyer" in the Criminal Code could be accurately rendered as "a lawyer's office" in the Elections Canada Investigator's Manual, I'm still not certain what Gauthier was getting at.

It seems clear to me that this section of the manual has nothing to do with interviews and the voluntary delivery of privileged information.

Of course, none of this explains why a binder of questions to pose to Elections Canada officials in a deposition was relevant to establishing whether there was a "scheme" to evade spending limits.  What did they expect to find in the binder? 

Question to EC: How do you explain how this Liberal Party return was approved despite the obvious similarities to this rejected Conservative return?

Note to Interviewer:  Be polite but firm with this question, but under no circumstances mention the super-secret scheme to evade election spending limits explained in exquisite detail in Appendix B of this binder prepared by paid lawyers who foolishly think this material is privileged.

I'm probably misunderstanding the concept of "relevant" too.