Electoral fraud? Tell it to the judge.

COYNE: The Tories were gaming the system, but transfers of campaign funds are not illegal
Electoral fraud? Tell it to the judge.
Tom Hanson/Cp

You know, just because they’re talking points doesn’t mean they’re not true.

Ever since the “in and out” affair blew up 3½ years ago, Conservative party officials have maintained a consistent, not to say mono­tonous line of defence. The transfers of funds from the national party to local riding campaigns, the pooling of riding funds to make “regional media buys,” and the purchase of these from the national party: all are both legal and common across all parties, separately and in combination.

To my knowledge, no one disputes this: Sect. 404 (2.1) of the Canada Elections Act in fact makes explicit provision for such transfers. So all of the breathless, tick-tock coverage—”at 2:32, $20,399 was transferred in; at 2:47, $20,399 was transferred out“—is beside the point. Notwithstanding the titillating name, there is nothing illegal or unusual in such “in and out” transfers.

Rather, Elections Canada’s case that the Conservatives exceeded national spending limits in the 2006 election campaign is based entirely—entirely—on how the transferred funds were dispersed. Specifically, the agency contends that although the 66 participating campaigns agreed to take part in the regional media buys, and although they were invoiced for them and wrote the cheques to pay for them, they did not actually incur these costs: the national party did. How does it know?

The agency’s story has changed over the years. A good account is found in the original legal ruling in this tangled affair, issued by the Federal Court of Canada in January 2010. The Conservatives had sued to overturn the chief electoral officer’s refusal to reimburse them for their expenses, an application the court upheld. At the time, the agency placed great stock in the notion that the cost of the ads was not incurred by the candidates because they were not “really” local.

As Janice Vezina, associate deputy chief electoral officer, explained in an affidavit to the court, the decision was based on certain “contextual elements,” among them: “the fact that the content of the advertising itself did not directly promote the candidates who were claiming the expense.” This was a problematic justification, since:

a) the ads did directly promote the candidates—their names appeared on them as “tag lines”—though they also promoted the party and its leader—which could be said of virtually every local ad ever produced, and which the court found the law permitted.

b) any candidate will tell you the national campaign is critical, often decisive, to their chances. There’s no neat separation between the two. Offered the funds to buy more “national” ads to show in their area, most would jump at it. And

c) it gets Elections Canada into the business of judging the content of ads, not to say second-guessing the campaign strategies of local candidates—matters it conceded, as the trial wore on, were none of its affair.

Well, that was then. By the time the Federal Court of Appeal heard the case, the agency was conceding the point. As the court noted in last month’s ruling, “the CEOC does not now dispute that their purpose was ‘to directly promote’ the candidates in whose electoral districts they were broadcast.”

Yet it continued to maintain that these costs were not really “incurred” by the candidates. The exact reasons remain obscure. Is it because the local campaigns were wholly under the sway of the national party, unable to choose for themselves whether to sign the cheques? But then how were those famous dissenting candidates, about which we have heard so much, able to refuse?

No, dig into Elections Canada’s affidavits, and you find it’s all about paperwork. It was unclear whether the local campaigns had contracted directly with the Conservatives’ advertising agent, Retail Media Inc., or had done so indirectly, through the party. Candidates were invoiced by both the party and RMI, without a clear distinction between the two. The documents were vague and confusingly written. And so on.

Look: ultimately a court will decide this. The Federal Court found, unambiguously, that the costs were incurred by the candidates, and that therefore the chief electoral officer was wrong to disallow the claim. The Court of Appeal, by contrast, ruled that the CEO’s decision to disallow the expense claim was “reasonable,” that is that it fell within the range of rational possible outcomes. It expressly declined to rule on whether another decision would have been as reasonable.

And no court has yet ruled that the Conservatives “broke the law”: Elections Canada has only just brought charges to that effect. (That applies as well to the so-called “forged invoices,” which to date has not even been alleged, or not by anyone without parliamentary immunity.)

My point is not to exonerate the Conservatives. It is rather to suggest that this is hardly the sort of cut-and-dried case of “electoral fraud” the opposition, and it seems large sections of the media, have decided it is. It is indeed, as the Conservative talking points insist, a dispute about accounting standards, and shifting standards at that: as of 2006, Elections Canada’s “Handbook for Candidates” really did seem to allow, in the judgment of the Federal Court, the very practices that are now in dispute.

Does that mean the Tories are above reproach? No: they were clearly gaming the system, sailing as close to the wind as they dared. That is hardly unknown in politics, or in life. So either this affair is an occasion to develop an entirely new code of honour for politicians, in which they refrain from taking advantage of these sorts of opportunities, even where lawful, or we close the loopholes that make them possible. If we don’t want national and local campaigns to be mixed up together, then forbid all transfers between them, rather than attempt the essentially metaphysical task of divining after the fact who “really” incurred which costs.

Again: I have no particular sympathy for the Tories. Their deceitful, bullying behaviour, from the day they took office, makes it just deserts that no one believes them now. But a lynch mob is still a lynch mob.