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April 18, 2008

About That Search

The Star reports:

At least some of the material that was carted or wheeled out Tuesday and Wednesday by RCMP officers assisting Elections Canada investigators was the basis for the party's planned questioning of elections officials in the lawsuit challenging their interpretation of campaign financing rules.

Included among papers and emails seized or downloaded were all of the party's documents, including a series of indexed binders of Elections Canada records, related to the Conservatives' challenge in Federal Court of the agency's decision to disallow rebate claims involving some local campaign advertising expenses in the 2006 election, according to a document obtained by the Star.

If this is true, it seems to me it means three things:
1. The Conservatives were at least partially correct when they alleged - to general condemnation - that the raid was motivated by the upcoming questioning of Elections Canada officials in connection to the Federal Court suit.

2. Stephen Taylor was absolutely right to question Elections Canada's exercise of its search power over the Conservative Party while the latter's suit against the former was pending in Federal Court.

3. By exercising their search power in connection with a civil suit to which they are a party, rather than in connection to an investigation into Elections Act violations, Elections Canada has engaged in a gross violation of the standards and spirit of procedural fairness, even if they haven't violated any law (of which I don't know enough to say). Parties to a civil suit have an established mechanism to obtain documents and information from their adversary: the process of discovery allows parties to request documents and requires the production of those documents, subject to established legal privileges. If a party believes its adversary is not producing legitimate discovery materials, the party can apply to the court for redress. But what Elections Canada appears to have done here is to invoke its own executive police power to seize, directly, documents - including, quite possibly, privileged documents (such as the work product of the party's lawyers) - that it did not obtain in discovery.

To understand why this is such an affront to procedure, consider the inverse: the Conservative Party surely has requested documents from Elections Canada in relation to its civil suit, and I'd wager that not all the requested documents have been produced. If the party believes those documents ought to be produced, their only recourse is to petition the court to compel production. They cannot - and they should not be able to - coopt the services of the RCMP and 'raid' the offices of Elections Canada to seize whatever documents they think relevant.
If the Star's story is accurate, we have more of a scandal on our hands than In & Out.

UPDATE [11:56 EDT]: Alright, it might only be a scandal for law nerds. But we're people too!

Posted by David Mader at 10:43 AM | (3) | Back to Main

April 17, 2008

I Can't Be the Only One...

... who gets hungry at every mention of the In and Out scandal?

Posted by David Mader at 11:21 AM | (3) | Back to Main

April 16, 2008

About That RCMP 'Raid'

I generally agree with Warren's point that it's bad cricket to badmouth the operations of our national police force (not that I've been immune from doing so). I also generally agree with Adam and Paul that, to the degree that their actions are seen as politically suspect, the RCMP is not entirely without fault.

All that being said, I think it's important to note that yesterday's 'raid' was not, in fact, part of a "police investigation." In fact, since we're all libel experts now, I should note that such a suggestion may be defamatory. Rather, the RCMP was merely executing a search warrant obtained by Elections Canada. I've been doing some research into certain Canadian administrative bodies recently - I hope to share the fruits of my research here soon - and one thing I've learned is that a rather surprising number of agencies enjoy the authority to search the property of private persons in furtherance of agency business. These searches must generally be authorized by a judicial warrant. When a judicial warrant is issued, the warrant must be executed by some police force.

So while it's very dramatic to see RCMP officers go rifling through Tory HQ, we should remember that, while there, these RCMP officers are not acting as investigating police officers. They're acting as the mere facilitators of a bureaucratic inquiry.

Important difference, I think.

UPDATE [11:51 EDT]: For context and background, here are the statutory provisions under which the search was conducted:

Canada Elections Act § 511(3):

For the purposes of section 487 of the Criminal Code, any person charged by the Commissioner with duties relating to the administration or enforcement of this Act is deemed to be a public officer.
Criminal Code of Canada § 487 (part):
(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it.

In fact, the plain language of the statutes suggests that Elections Canada officials wouldn't even need a police presence to enforce a warrant; investigating officials are deemed "public officers" and are authorized "to search . . . for any such thing and to seize it." That being the case, I do think it's legitimate to ask why the RCMP was there.

These statutes do touch on a larger issue, which Stephen addresses in part. Most people, I think, have a rather straightforward notion of how laws are made and administered: the legislature passes laws, the police investigate violations, the crown attorneys prosecute offenders, and the courts render verdicts and punishment. But a host of statutes in Canada have complicated that intuitive system. Now, the legislature passes a law outlawing certain conduct - and creating an administrative body to administer the law; one part of that body investigates violations; one part - often the same part - of that body prosecutes offenders; another part of that body renders a verdict and issues punishment; and only then, generally, is an offender given access to the courts of law.

In other words, a number of statutes - including the Elections Act, but also, increasingly notoriously, the various human rights acts and codes - eliminate the notional separation of executive and judicial functions. Agency officials become - not judge, jury, and executioner - but detective, prosecutor, judge, jury, and executioner.

That's a problem, for reasons we're seeing in the Macleans and Steyn cases, and for reasons I hope to elaborate on in the coming weeks.

UPDATE (13:53 EDT): A little more information:
Elections Canada spokesperson John Enright confirmed to the Star that Corbett sought the RCMP's assistance to execute a search warrant. . . .

RCMP commissioner Bill Elliott said the RCMP has a "longstanding memorandum of understanding" to assist Elections Canada, and insisted his officers were simply complying with a request.

I'd love to read that memorandum.

Posted by David Mader at 10:54 AM | (2) | Back to Main

April 14, 2008

In Fairness to the Bloc

It's not something you can say about all the parties in Ottawa these days.

Posted by David Mader at 11:11 PM | (1) | Back to Main

Before You Ask

Human Rights Commission complaints like this one are a useful way to expose ideologically motivated hypocrisy on the part of the human rights apparatus (for lack of a better term), but the complaint should still be opposed on the merits. I haven't read the book that forms the basis of the complaint, but judging by the characterization by the complainant, the Imam's comments - though racist, misogynist, and worthy of condemnation and contempt - should not be illegal.

Presumably my friend Warren disagrees.

Posted by David Mader at 11:07 PM | (0) | Back to Main

April 03, 2008

Fun With Mr. Dion

Let's see if we can work this out:

Liberal Leader Stéphane Dion is accusing the Conservatives of dangling vague and false hopes to Quebec with renewed talk of reopening the Constitution.

So the problem with the Harper/Blackburn proposal is that they don't mean it?

"He's confused. He's ambiguous. He has a hidden agenda. He must show it to Canadians. He must stop being secretive. He must be transparent about the fabric of this federation."

So the problem is that Harper does mean it, but isn't telling anyone that he means it?

Dion, a former minister in charge of the unity file and a constitutional academic before he came into politics, said the Prime Minister wants Quebecers to believe he'd recognize their nationhood within the Constitution, but in fact, has no plans to do so.

Wait - so does he have a hidden agenda or not?
Maybe it makes more sense in French.

In any case, isn't it a bit frustrating to see Dion, again, resorting to ad hominem rather than addressing the substance of the issue? This, recall, is the alleged academic whose rise to the leadership of the Liberal Party was greeted by many - myself included - as an opportunity to raise the level of political discourse and debate. And yet from day one Dion has seemed eager to eschew any academic or intellectual approach to the issues of the day in favor of hyper-partisan name calling. Early on he labeled the Harper government 'neo-conservative' without stopping to explain why that would be a bad thing. More recently he's derided the Conservative agenda as contrary to the interests of Canadians, while refusing to vote against that agenda. And now he's responded to an explicit challenge to Canadian unity - by attacking the Prime Minister's character.

Why can't he just say: This is a terrible idea? Why can't he say: All the ten provinces are partners in confederation, all are equal, all stand together under one flag? Why can't he say: The Quebecois experience, stretching back four hundred years, involving triumph and tragedy, celebration and defeat, but all the while perseverance, tenacity, joie-de-vivre - the Quebecois experience is part of what it is to be Canadian?

Why can't he say that? Because he'd lose votes in Quebec? This guy? This darling son of la belle province? This electoral behemoth? Why can't this purported leader respond to some obvious pandering with clarity and vision and purpose - unless he's engaged in precisely the same sort of pandering?

A lot of Conservatives are perfectly happy to see Dion remain Liberal leader, secure in the knowledge that the longer he's in his office, the longer they're in theirs. But all governments require an effective opposition - especially when they seek to tinker with the foundation of the body politic. I don't actually think Blackburn's comments are a harbinger of coming constitutional change; I think they're pretty clearly just another example of underperformance by the Tory front bench. But even these sorts of off-the-cuff comments deserve a swift, strong, smart response. Surely someone in Ottawa has to stand for a one-nation Canada. You'd think that person would be Mr. Unity, the constitutional academic.

But he's clearly not up to the job.

Posted by David Mader at 10:09 AM | (0) | Back to Main

April 01, 2008

On Mill On the Harm Principle

An interesting review of a recent biography of John Stuart Mill explores changing conceptions of harm:

Mill had a view of men as capable and energetic, who, when given the chance, could progress to become serious and even ‘heroic’ individuals. Thus, he had a quite narrow view of harm: in his view, it would take quite a lot to harm individuals who were possessed of free will and very often grit, and therefore he argued that only clear cases of harm could justify restrictions.

Today, by contrast, individuals are viewed as weak and vulnerable. The term ‘the vulnerable’ is used to refer to whole swathes of society. We are considered to be easily damaged and fragile creatures who must be mollycoddled by political leaders, social workers and health practitioners in order to keep our self-esteem intact. So almost everything is seen as ‘harmful’ to us today. The difference between Mill’s view of harm and the popular view of harm today is the difference between a view of mankind as generally good and capable of freedom, and a view of mankind as weak and degraded. So where Mill emphasised the necessity of liberty, today many officials and commentators talk about the ‘dangers of unadulterated liberty’.

Interesting, particularly in light of the ongoing debate over free speech in Canada.

Posted by David Mader at 01:19 PM | (2) | Back to Main