Two Significant Court Rulings in Elections Law
Two significant rulings have been handed down in the last month relating to elections law, and particularly the provisions regarding election expenses.
For complete coverage of today's ruling on the so-called "in-and-out" case, consult Kady O'Malley's post for cbc.ca/politics (h/t for the link to the ruling), Glen McGregor's story for the Ottawa Citizen (which includes a fantastic graphic by Robert Cross), and Tim Naumetz who covered the political reaction in greatest detail for Canadian Press. Commentary from the blogosphere has been light so far, but includes Stephen Taylor and Steve Janke from the Conservative side of the spectrum, and the Jurist at Accidental Deliberations for a more NDP orientation. Typically Impolitical blogs on election law cases from the Liberal corner, but she hasn't written on this one as yet, although I'm told to stay tuned (ah, here we are now).
I still haven't had the time to read the ruling in sufficient detail to absorb all the important legal, political and strategic points it raises, but here are two versions of the ruling (HTML and PDF), and my preliminary take on it from the comments on an earlier blogpost:
Campbell v. Canada (Chief Electoral Officer) (2010 FC 43) T-838-07, Date: January 18, 2010
L.G. (Gerry) Callaghan et al. v. the Chief Electoral Officer (PDF version; and, no, I don't know why the case is titled differently here than in the above citation; Campbell was the candidate and Callaghan was his official agent)
My superquick reading of the court ruling says that in-and-out transfers of funds per se are fine, as they always were, and that the content of a candidate's ads can promote the candidate OR the party OR the leader, as always used to be the case. The Chief Electoral Officer was trying to argue that the ads *had* to promote the candidate in order to count as a candidate's election expense.
On the other hand, the court ruled that there has to be a reasonable basis for allocating costs of regional ad buys between the local campaigns, based on their market value to the campaign (not on the basis of how much room they have left under their spending limit); and that the difference between what the candidate's campaign paid and the market value of those ads to the candidate's campaign is to be considered a contribution in kind (and thus counts towards the candidate's spending limit; note that only paid expenses are rebatable under the Elections Act).
Judge Martineau asserts that if a candidate's official agent paid the expense, that in and of itself is sufficient evidence that the candidate's campaign approved of the expenditure.
Also, the Chief Electoral Officer (CEO) is not forced to issue a certificate pro forma. But the differing statuatory roles of the CEO on the one hand, and the Commissioner on the other, are discussed. It's also clear that the Commissioner's investigation is on-going, and there may be other developments to come in this story.
Overall, I think the points were worth litigating, and the ruling will provide a lot better guidance to both the CEO as well as to all the political parties. I have no idea whether it will be appealed. However, I would like to see a bit more clarification as to what the courts believe the difference is between a national party's election expense and a candidate's expense, as I think there must be some (less restrictive) way of deciding which category an expenditure fits into. Otherwise why would we have separate national and candidate spending limits?
Parties and candidates can currently transfer funds to each other at will as often as they like, and riding associations can transfer funds back and forth with either parties or their own local candidates. The only kinds of transfers that aren't permitted are from one candidate to another. Yet, the regime apparently enabled by provisions of this ruling would seem to allow *election expenses* to be transferred from one entity to another, rather than just funds. Although, this might be the subject of the investigation by the Commissioner of Elections, so I guess we'll just have to be patient.
The other ruling which we discussed before, relating to whether GST rebates on their 2004 and 2006 campaign election expenses, which were received by the Conservative Party by virtue of being a non-profit organization, ought to reduce their reported election spending for those campaigns, has now been published here:
Conservative Fund Canada v. Chief Electoral Officer of Canada, 2009 CanLII 72340 (ON S.C.), Date: December 31, 2009.
Happy reading, all you legal beagles.
For complete coverage of today's ruling on the so-called "in-and-out" case, consult Kady O'Malley's post for cbc.ca/politics (h/t for the link to the ruling), Glen McGregor's story for the Ottawa Citizen (which includes a fantastic graphic by Robert Cross), and Tim Naumetz who covered the political reaction in greatest detail for Canadian Press. Commentary from the blogosphere has been light so far, but includes Stephen Taylor and Steve Janke from the Conservative side of the spectrum, and the Jurist at Accidental Deliberations for a more NDP orientation. Typically Impolitical blogs on election law cases from the Liberal corner, but she hasn't written on this one as yet, although I'm told to stay tuned (ah, here we are now).
I still haven't had the time to read the ruling in sufficient detail to absorb all the important legal, political and strategic points it raises, but here are two versions of the ruling (HTML and PDF), and my preliminary take on it from the comments on an earlier blogpost:
Campbell v. Canada (Chief Electoral Officer) (2010 FC 43) T-838-07, Date: January 18, 2010
L.G. (Gerry) Callaghan et al. v. the Chief Electoral Officer (PDF version; and, no, I don't know why the case is titled differently here than in the above citation; Campbell was the candidate and Callaghan was his official agent)
My superquick reading of the court ruling says that in-and-out transfers of funds per se are fine, as they always were, and that the content of a candidate's ads can promote the candidate OR the party OR the leader, as always used to be the case. The Chief Electoral Officer was trying to argue that the ads *had* to promote the candidate in order to count as a candidate's election expense.
On the other hand, the court ruled that there has to be a reasonable basis for allocating costs of regional ad buys between the local campaigns, based on their market value to the campaign (not on the basis of how much room they have left under their spending limit); and that the difference between what the candidate's campaign paid and the market value of those ads to the candidate's campaign is to be considered a contribution in kind (and thus counts towards the candidate's spending limit; note that only paid expenses are rebatable under the Elections Act).
Judge Martineau asserts that if a candidate's official agent paid the expense, that in and of itself is sufficient evidence that the candidate's campaign approved of the expenditure.
Also, the Chief Electoral Officer (CEO) is not forced to issue a certificate pro forma. But the differing statuatory roles of the CEO on the one hand, and the Commissioner on the other, are discussed. It's also clear that the Commissioner's investigation is on-going, and there may be other developments to come in this story.
Overall, I think the points were worth litigating, and the ruling will provide a lot better guidance to both the CEO as well as to all the political parties. I have no idea whether it will be appealed. However, I would like to see a bit more clarification as to what the courts believe the difference is between a national party's election expense and a candidate's expense, as I think there must be some (less restrictive) way of deciding which category an expenditure fits into. Otherwise why would we have separate national and candidate spending limits?
Parties and candidates can currently transfer funds to each other at will as often as they like, and riding associations can transfer funds back and forth with either parties or their own local candidates. The only kinds of transfers that aren't permitted are from one candidate to another. Yet, the regime apparently enabled by provisions of this ruling would seem to allow *election expenses* to be transferred from one entity to another, rather than just funds. Although, this might be the subject of the investigation by the Commissioner of Elections, so I guess we'll just have to be patient.
The other ruling which we discussed before, relating to whether GST rebates on their 2004 and 2006 campaign election expenses, which were received by the Conservative Party by virtue of being a non-profit organization, ought to reduce their reported election spending for those campaigns, has now been published here:
Conservative Fund Canada v. Chief Electoral Officer of Canada, 2009 CanLII 72340 (ON S.C.), Date: December 31, 2009.
Happy reading, all you legal beagles.
Labels: Election Expenses
posted by The Pundits' Guide at
8:48 PM
2 Comments:
Here's my take on the significance and what to expect:
The Conservatives won a battle that EC wanted to win.
But I don't think this has a lot of implication for the larger EC building of a case that the Conservative Party used these in and outs as a means to deliberately circumvent national spending limits.
The Consrvatives have now demonstrated the legality of at least some of the individual transactions with riding campaigns. But that says nothing about whether there is a provable pattern of using the riding campaigns to circumvent national spending limits.
That EC case, presuming they continue to press it, is going to rest much more on correspondence among senior national campaign management and the ad agencies, and how the transfers were explained to the riding campaigns.
And it is not going to help the Conservatives counter case that Judge Martineau specifically did NOT endorse the arbitrary allocation of expenses among the ridings according to the spending cap they had available.
Because the resolution of that larger EC case is going to run past the next general election even if it is not until 2011, and because of that part of Judge Martineau's findings, I think it very unlikely that the Conservatives will take this as a green light to use the in and out to circumvent spending limits in the next election.
I also think it is likely that EC will decide not to appeal this ruling, and to concentrate on the larger case.
While the ruling does leave a lot of grey area for operations that EC will not like, its only one narrow issue in a whole hornets nest of problems around enforcement of spending limits.
Past behaviour on other issues- loans from private individuals for example- indicates to me that ECs strong preference would be to kick this back to Parliament to have the Act changed. That simply is not going to happen with the Conservatives governing, so there has been no point to date in EC publicly raising the issue.
But this case around the national spending will still be running after the next election. And if the Conservatives fail to get a majority, I would expect to see EC ask for legislative clarification- and essentially dropping the case against the Conservative Party if they get that.
Of course, the latter is just an informed hunch. But it doesn't involve EC doing anything different right now. And it offers another reason for letting this ruling stand: that the attendent less than ideal ambiguity in future enforcement would be tolerable while they wait for the bigger issues to besorted out... be that through legislative clarification, or litigation around the bigger explicit national spending case.
Thanks for your take on it, Ken.
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