Elections watchdog has no power to audit Tory in-and-out invoices, lawyer argues
Published Monday November 23rd, 2009
OTTAWA - Canada's chief electoral officer has no discretion to audit or investigate election expense claims by party candidates but must simply reimburse them if the paperwork appears in order, a lawyer representing two Conservative agents argued Monday in Federal Court.
It was a surprisingly simple, nuance-free submission considering the lawsuit - initiated by the Tories in relation to advertising expenses in the 2006 federal campaign - has taken more than 27 months, countless court manoeuvres and hundreds of thousands of dollars in legal fees to get before a judge.
Lawyer Michel Decary, representing two Conservative agents among 67 who participated in the so-called "in-and-out" ad financing scheme, said the role of chief electoral officer Marc Mayrand is purely "mechanical" when it comes to reimbursing expenses.
"He has no investigative powers," Decary told a clearly skeptical Justice Luc Martineau.
"The role of the chief electoral officer is not to get down in the ring and become the prosecutor."
Since the candidates provided invoices for the ad purchases, and since the ads did in fact run, Elections Canada had no option but to reimburse them, Decary stated.
He said that if Mayrand had concerns about the invoices, his only option was to pay up and then refer the matter to the federal Elections Commissioner for investigation.
Mayrand did in fact call in Elections Commissioner William Corbett, who is still investigating. But Elections Canada also stopped payment to some 50 Tory candidates after reimbursing 17 of 67 claimants who participated in the ad scheme.
The case involves $1.2 million in Conservative advertising that was billed to local candidates during the last weeks of the 2006 election campaign.
In a series of transactions controlled by party headquarters, thousands of dollars were transferred to local campaigns, which immediately sent the money back as payment for national TV and radio ads that played in their region.
Had the national ads been billed to the party, the Conservatives would have exceeded their election spending limit by more than a million dollars.
Decary's line of argument left Justice Martineau - who repeatedly exhibited a far more detailed knowledge of the thousands of pages of evidence than the Tory lawyer - with many, many questions.
The judge raised the hypothetical situation of a clearly forged invoice. Mayrand's only option, he asked Decary, would be to contact the Elections Commissioner, who would conduct an investigation and recommend charges to the Director of Public Prosecutions, who would take the case to court and, upon conviction, send it back to Elections Canada to try to get the money back?
"Yes," responded Decary.
"So why are we Canadians paying for a bunch of auditors (at Elections Canada) who cannot audit under the Elections Act?" asked Justice Martineau.
Decary's response was to fall back on his original argument: that the chief electoral officer's job is "the mechanical application of very meticulously detailed legislation."
Martineau appeared close to exasperation after asking a series of detailed questions about the Tories' Quebec advertising campaign.
Decary didn't respond, but instead noted the two Tory agents he was representing were not from Quebec ridings. "The Quebec situation is not before the court."
Martineau then pointedly asked why he had received more than 400 pages of depositions related to Quebec among the Tory-filed evidence.
He also noted that the Conservatives have expressly said they want to use the court ruling on the two agents as a test case that would apply to all the other outstanding candidate expenses, so the court needs to understand the full advertising picture.
Decary will continue presenting his case Tuesday, after which Elections Canada lawyer Barbara McIsaac will offer her rebuttal.
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