On Monday, the federal court decided in favour of the Conservatives against Elections Canada when the regulator’s chief electoral officer (CEO) Marc Mayrand decided to withhold reimbursements to two candidates because they similar ads used by other candidates with the “tagline” of the ads changed.

Justice Martineau decided that Mayrand was wrong to do so and ordered Elections Canada to reimburse. This litigation only involved two candidates out of dozens because it was a test case for the Conservatives. It was decided Mayrand cannot withhold from all since the judge has decided in favour of the two. Paragraph 178 of the decision explicitly states this,

[178] For the reasons below, having considered the totality of the evidence on record, the Court finds that the claimed advertising expenses were actually incurred by the applicants. That said, the amounts reported by each applicant must be corrected to have the difference between the commercial value of the claimed advertising expenses and the amount actually invoiced by the Fund reported as a non-monetary contribution. Ultimately however, the Court finds that the impugned decisions are unreasonable and must be set aside.

Most significantly, this decision should deflate any investigation by Elections Canada into Conservative Party expenses regarding the in-and-out scheme.

Also significant, Martineau decided how it is that a campaign incurs an expense. The CEO and commissioner were of the opinion that the Conservative Regional Media Buy was a sham. The CEO had argued that it didn’t see a contract for the regional media buy and therefore costs were not incurred by the campaigns. However, as the judge indicated, incurring an expense simply means to take liability upon oneself, therefore no written contract would be required. Paragraphs 121-124 of the decision reflect this. Further, Martineau decided that,

“[124] Accordingly, the Court finds that the respondent, or Elections Canada’s representatives, erred in law in requiring that there be actual written contracts between the candidates or their official agents and the supplier of the advertising services that were provided in December 2005 and January 2006. Payment for these advertising services in January 2006, by the official agents of participating candidates, is proof that these services were duly authorized. Moreover, as illustrated below, the requirement to have actual written contracts appears to be contrary to Elections Canada’s and the CEO’s past practices with regard to RMBs.”

It appears that the CEO has misinterpreted the statute.

Furthermore, the court accepts evidence provided by the party that describes how expenses are incurred in paragraph 151 as it describes the Donald Affidavit,

[151] Moreover, the evidence on record, including the practices of other registered parties as set out in the exhibits to Geoff Donald’s affidavit (a political operations officer with the Conservative Party), illustrates that there is a presumption that a candidate has incurred an advertising expense if said expense has been paid from the candidate’s campaign account.

The Chief Electoral Officer changed the Elections Handbook in 2007 for candidates and official agents. The handbook is the CEO’s interpretation of the Elections Act distilled in a more readable form. Paragraph 142 of the decision describes this concept,

[142] Over the years, the CEO has published various handbooks that articulate his interpretation of the Act. Among these publications is the “Election Handbook for Candidates, their Official Agents and Auditors” (the handbook). While this handbook provides insight as to how the CEO and Elections Canada have understood certain provisions in the Act at various points in time, it is in no way binding on the Court. Nevertheless, from a practical point of view, candidates and their official agents are strongly advised by the CEO to seek independent legal counsel if they wish to depart from the interpretation adopted by the CEO in the handbook.

A key point of contention between the Conservative Party and Elections Canada was that the CEO changed the handbook in 2007 from the 2005-2006 version and applied his interpretation as a regulator of elections despite the fact that the underlying statute had not changed.

In 2005, during the election, advertising regional media buys conformed with the 2005-2006 version of the handbook. Without any change to the statute by parliament, the CEO changed the 2007 version of the handbook with respect to how valid candidate expenses for regional media buys were defined. The Conservative Party argued that the 2007 handbook guidelines were retroactively applied to the 2006 election though the 2005-2006 handbook described expenses differently. Paragraphs 144-147 recognition by the judge that a retroactive application of the “rules” was applied,

[144] Nevertheless, a reading of all the handbooks published by Elections Canada up to, but excluding, the most recent handbook issued in March 2007 (the 2007 handbook), clearly suggests that the CEO will treat as an election expense for the purpose of reimbursement, any cost incurred by a candidate’s campaign for the purchase of an ad that is used to promote both the candidate and its affiliated party.

[145] The fact that the same ad would have been used by the party to promote itself on a different occasion would not be considered a reason for refusing to certify such an expense.

[146] This liberal interpretation of section 407 is reflected in the different versions of the handbook published by Elections Canada over time. For example, the handbook issued in December 2005 (the 2005 handbook) provides:

Election advertising
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party of the election of a candidate, including one that takes a position of an issue with which a registered party or candidate is associated….

Identification of election advertising
All election advertising that promotes or opposes a registered political party or the election of a candidate, including taking position on an issue with which a registered party or candidate is associated, must indicate that it is authorized by the official agent of the candidate.
(Emphasis added.)

[147] Indeed, the handbooks have even provided for the possible situation of a candidate and a party agreeing to share an ad. According to the handbooks, if such a scenario arose, the CEO would review the basis for allocating the cost incurred by each, to verify that it was reasonable. As mentioned in the 2005 handbook:

…The following are examples of transfers:
[404.2(2), 404.2(3)]
…a proportion of expenses incurred to promote or oppose a candidate or a party. Elections Canada will accept the basis of allocation used by the official agent, provided that it is reasonable in the opinion of the Chief Electoral Officer, and provided that the auditor agrees that the allocation is reasonable and in keeping with this handbook.

Again, regarding the handbook, the judge remarks that the CEO’s interpretation of the Elections Act is just plain wrong. The interpretation of statute by the CEO and change in interpretation is not supported by Act passed by Parliament. Paragraphs, 130 and 131 describe this,

[130] The respondent submits in his written memorandum that the object and scheme of the Act require subsection 407(1) to be read disjunctively, resulting in the following definition:

407(1) An election expense includes any costs incurred, or nonmonetary contribution received, by a [ ... ] candidate, to the extent that the property or service for which the costs was incurred, or the non-monetary contribution received, is used to directly promote or oppose [...] a candidate during an election period.

(Emphasis added.)

[131] According to the respondent therefore, to be an election expense for a candidate, the election expense must be used to directly promote or oppose a candidate, and not a registered party or its leader. The Court does not accept the respondent’s disjunctive interpretation outlined above. A plain reading of subsection 407(1) does not authorize the Court to discard the words used by Parliament in enacting this provision. Rather, a plain reading favours the conjunctive interpretation that was found in material published by the CEO prior to the 2006 election. Namely, an election expense for a candidate can be one that exclusively promotes a candidate, or it can be one that directly promotes both a candidate and a registered party or its leader.

Speaking to party officials close to the issue, what I get from them is that they feel that the CEO is making up the rules as he goes along, interpreting changes to the statute when no such changes have been passed into law by Parliament.

If we look at the recent victory by the Conservative Party against Elections Canada in the GST double dip litigation, we can see a pattern of this behaviour according to my sources. Paragraphs 78 and 79 of the Conservative Party Fund v. Canada (Chief Electoral Officer) decision suggest this,

[78] There is no basis in the statute for finding that, in the circumstances of competing policy concerns that are both directed toward furthering the policy of a “level playing field” among political parties, the interpretation that gives effect to the policy of a “level playing field” in respect of a political party’s maximum expense limit under section 422 must take precedence.

[79] Accordingly, I conclude that there is no basis in the Act, or in the Harper decision, for the CEO’s position that the policy of a “level playing field” for all political parties in Canada mandates the CEO’s interpretation of the Act in the face of the plain wording of the Act and the other considerations set out above.

Two separate court hearings before two different courts have concluded that the Chief Electoral Officer’s interpretation of statute has been flat-out wrong. In fact because of this poor interpretation of statute, the CEO has been making up rules as he goes along. This faulty interpretation of statute has impeded the Conservative Party specifically.

Troubling is the position of Elections Canada in this entire ordeal. Their role as a regulator is to apply statute passed by the will of Parliament. If they were to appeal this decision or proceed with an investigation, the regulator would then enter the arena among the partisans. Elections Canada should be educated by the court’s decision and not move to disagree because it would reflect a divergent view from that defined by statute and clarified by the Federal Court this week.

For reference, here are the two decisions discussed in this post:
Martineau decision, Federal Court – In and Out

Wilton-Siegel decision, Superior Court of Justice – GST double dip

Liberal Party of Canada – (8)
Scott Andrews (Avalon)
Larry Bagnell (Yukon)
Jean-Claude D’Amours (Madawaska—Restigouche)
Wayne Easter (Malpeque)
Keith Martin (Esquimalt—Juan de Fuca)
Anthony Rota (Nipissing—Timiskaming)
Todd Russell (Labrador)
Scott Simms (Bonavista—Gander—Grand Falls—Windsor)

New Democratic Party – (12)
Malcolm Allen (Welland)
Charlie Angus (Timmins—James Bay)
Niki Ashton (Churchill)
Dennis Bevington (Western Arctic)
Nathan Cullen (Skeena—Bulkley Valley)
Claude Gravelle (Nickel Belt)
Carol Hughes (Algoma—Manitoulin—Kapuskasing)
Bruce Hyer (Thunder Bay—Superior North)
Jim Maloway (Elmwood—Transcona)
John Rafferty (Thunder Bay—Rainy River)
Peter Stoffer (Sackville—Eastern Shore)
Glenn Thibeault (Sudbury)

Bloc Québécois – (0)

Independent – (1)
André Arthur (Portneuf—Jacques-Cartier)

and from the governing Conservatives…

Conservative Party of Canada – (143)

Read my post on how the vote went last night

For all of the Liberal crowing last quarter over their 2Q results (largely buoyed by a “leadership” convention where Michael Ignatieff was coronated leader) and their 1Q->2Q plus/minus, their 2Q->3Q plus/minus is that story in reverse. However, realistically this quarter’s results shows the real strength of each party’s fundraising machine.

Interestingly, the Greens are outraising the Bloc Quebecois. The Greens may argue that this is another example of why we need proportional representation, however, I’d argue that this represents Canadians that believe in something, rather than believing against another (see what I mean in this article).

The NDP is raising half of what the Liberals are raising showing that for their relative size, their numbers aren’t surprising. Further, it shows that the NDP base is still healthy enough for their smaller party. For the Liberals, their numbers are also relative to their seat count (when compared to CPC numbers) in the House of Commons. However, this may be bad news for the Liberals as they’d like everyone to believe that their seat count is rather a result of a unpopular leader in the last election rather than current Canadian (and Liberal member) attitudes about this party.

Despite the economic crisis, the numbers are still relatively healthy. My friends in the fundraising sector would suggest that if corporate donations were still legal, we’d see party fundraising take a hit this year. However, although Canada went through some tough economic times this year, personal donations are still relatively strong in all charitable sectors.

The branding for the Canadian Olympic team was unveiled yesterday by the Hudson’s Bay Company which runs retail outlets under the Bay and Zeller’s names in Canada. The company is the official outfitter for the 2010 Vancouver Olympic Canadian team. Here’s their short video describing the brand and inspiration:

It’s a bit stirring isn’t it? But, as this is a political blog, let’s describe it in this context. For years, the Conservative Party in Canada has been trying to reset the image of Canada that had existed prior to a long-run of Liberal governments and the Conservatives have sought to push back against the rebranding of the Canadian image under that party.

There was criticism yesterday that the Canadian Olympic look and feel bore a striking resemblance to that of the governing party.

The Conservative Party logo (left), the Canadian Olympic logo (right)

First, it should be said that the Hudson’s Bay effort was completely independent of any government interference. This was confirmed by Gary Lunn, junior minister for Sport in the House of Commons yesterday in a response to a question by Vancouver Liberal MP Hedy Fry. After all, companies lobby government, it is unusual for government to lobby companies. You can see examples of other similar logos here, here, and here.

Despite the criticism about the branding similarities, and though in this case the government appears to be clear of any influence regarding HBC’s decision, the Conservatives in government have been working to recapture a certain sentiment among Canadians about their country.

That sentiment, stoked by Conservative branders, is pre-Trudeau(pian). Liberal branders would have you believe that this country was born after 1967, with the Montreal Expo, with a new red and white flag, healthcare and peacekeeping ingrained as our country’s greatest accomplishments.

Conservatives would remind Canadians that our country was born out of a pioneer spirit, hundreds of years ago, of brave individuals that carved out the wilderness and thrived in it. The Hudson’s Bay ad echoes this traditional vision of Canada.

Of Canada, Conservatives emphasize it’s history of fighting for King and country through early wars in Africa in the late nineteenth century and in Europe in the first great war. As Conservatives, we remember and acknowledge that we answered the call among nations to fight tyranny and totalitarianism in the second world war. Today, we recognize that the peace cannot be kept if it is not first made.

Our vision of Canada is one of individual determination and achievement over mushy collectivism. It was roughneck young explorers that mapped out the great expanse in the northwest of our country in search of new capitalist opportunities in fur, timber, ore and minerals.

The incremental rebranding of Canada by today’s government is not accidental. From the more organic maple leaf that adorns the header of every government of Canada website, replacing a more statist institutionalized version, to the rebranding of our armed forces to emphasize the role of the forces as not only the sharp end of the spear, but razorwire for troubled times rather than simply a career building opportunity, the Conservatives have made deliberate effort to remind Canadians of this more independent and rugged version of ourselves.

Under the Harper Conservatives, Canada’s image is emphasized as “the true North strong and free”, a country that defends and maintains its northern sovereignty rather than one that panders to a more European, globalized kid glove approach.

Michael Ignatieff has returned to Canada after quite some time abroad. A potential platform plank that he has been emphasizing is the regaining of Canada’s place on the world stage. In a speech to the Canadian Club of Ottawa, he spoke with a tone a wistfulness for those times when, well, the world was different:

Multilateralism was the Canadian mantra. In 1956, Lester Pearson found a way out of the Suez Crisis and made peacekeeping our vocation. When he won the Nobel Peace Prize the next year, the Nobel committee said “he’d saved the world.” We cheered.

In the post-war era, we became the world’s leading peacekeepers. Up to 1988, there was not a single mission that we didn’t join. At the same time, we went to war in Korea, the Persian Gulf and Kosovo. We went to war when we had to. We kept the peace when we could. Blue helmets became an emblem of our identity. — Michael Ignatieff

Before one can regain their footing, one must survey the new ground. Michael Ignatieff is not ignorant to the new challenges that the world has faced since Pearson. He’s done the heavy thinking on the new role of the world’s remaining superpower and its place on the world stage. However, one surmises that the former academic is in need of the same deep reflection when it comes to Canada’s maturation on the world stage since the Suez crisis, let alone 9/11. One fears that instead of deep academic and analytical reflection on the topic, his new position as a politician has driven him to a knee-jerk, easy but antiquated Liberal view of Canada. Since he left, Canada’s role on the world stage has evolved and matured from the euphemistic “honest broker” to a respected decision-making voice that is sought after for advice and respected for its decisiveness. Canada is again a country that does the heavy lifting.

Despite our history and place earned from taming our own wilderness through sharp wit instead of the welfare tit, despite our nation’s proud history of our young men and women stepping up up for King and country, in the time post-Pearson era Liberals rebranded this country. Expo 67 was promoted as “Canada’s introduction to the world”, as we were recast into the role of confident but newly innocent debutante ready to walk on the world stage if only to give a proper and elegant wave.

Today, Canada finds itself changed, but somehow familiar. Canada grew up long before Pierre Elliott Trudeau declared its birth. Though we were recast as a global ingenue by successive Liberal governments that had us play the stoically unsung middle “nuanced” power, when Canada hosts the world in Vancouver 2010, it will do so with its regained voice and identity.

Mike Duffy knows your name! Or at least the automated Duffy has a whole bank of names to read from in the Conservative Party’s latest innovative fundraising and voter ID widget that is scheduled to roll out later this evening.

The folks at Conservative Party HQ sent me a preview of their new product which includes the senator and former newsman outlining the Conservative record, while asking for your ranked issues, feedback, postal code and email address. The product also is customized to deliver localized content via geotargeting.

A senior Conservative explained that the the shiny new Duffy-gram is the brainchild of the party’s executive director Dan Hilton who has been moving the party to find new ways to push the envelope in the online space.

Also of note is a new slogan for the party which may yet brand a national campaign if we see one in the coming weeks. “Moving forward” suggests momentum, progress and an ongoing job. Contrast this with the Liberal Party slogan of “we can do better” which suggests failure of the incumbent, inclusion of Canadians and the Liberal Party “we” to solve a problem. Both slogans acknowledge a difficult situation and while the Conservative slogan is more punchy and complete, the Liberal slogan leaves a question open: “better than what?”. Further, the Liberal slogan opens them up to attack as a Conservative narrative is that Michael Ignatieff thought he could do better abroad rather than improve his career among Canadians looking to do the same.

Conservatives have led the Liberal party in databasing Canadians and their levels of partisan and issue-based support since at least the late days of the Alliance. The Liberals have had quite a time playing catch up as they’ve gone shopping for proven software, even approaching the Obama campaign in the Dion days. Yet, while Liberal national director Rocco Rossi is paddling up the Rideau Canal asking folks for money along the way, the Conservatives are showing that they continue to innovate.

Ryan Hastman is the Conservative candidate for the riding of Edmonton-Strathcona. A former staffer in the offices of Minister Stockwell Day and Prime Minister Stephen Harper, Ryan recently moved back to Edmonton where he will run to replace NDP MP Linda Duncan in the next election.

Lois Brown is the newly elected Conservative MP from Newmarket-Aurora. The former Conservative national councillor and Belinda Stronach rival for CPC nomination spoke to me about her impressions of the 2008 Conservative Party of Canada Policy Convention.

I’ve learned that the Conservative Party scrapped a motion before the convention that sought to affirm as Party policy the status of Quebec as a nation within a united Canada.

Political observers remember that last year, in a move of political brinkmanship against the Bloc Quebecois, the Prime Minister pre-empted a Bloc motion of Quebec’s nation status by including the distinction that Quebec as a nation exists within a united Canada.

Policy officials of the convention didn’t want to have a policy resolution go to the floor in plenary which would be voted up by Quebec delegates and voted down by Western Conservatives that some observe as resentful of la belle province for not delivering more seats for the party during the previous election. People close to the process concede that such a move could have been political dynamite and may have had the deleterous effect of putting shockwaves through the national media and within the province of Quebec.

As one policy official told me, the gain would be minimal and potential damage significant. The policy itself was redundent as the party itself moved and passed the similar motion in the House of Commons.

P-106 healthcare (No)
P-110 at-risk workers (Yes)
P-113 dangerous offender status (Yes)
P-114 faint-hope clause (Yes)
P-119 human trafficking (Yes)
P-202 affirm Charter (Yes)
P-203 human rights commission jurisdiction (Yes)
P-207 protecting pregnant women (Yes)
P-213 women (Yes)
P-218 diversity principles (Yes)
P-222 temporary workers (Yes)
P-223 program coordination and outcome audits (Yes)
P-301 new securities regulator (Yes)
P-303 capital gains (Yes)
P-305 income splitting (Yes)
P-306 tax code simplification (Yes)
P-308 striking workers (Yes)
P-321 agricultural trade agreements (Yes)
P-101 climate change in the North (Yes)
P-104 energy from garbage (Yes)
P-105 offshore oil and gas development (Yes)
P-111 complementary health (No)
P-122 veterans principles (Yes)
P-205 advancing arctic sovereignty (Yes)
P-208 student loans (No)
P-209 EI for summer students (No)
P-307 innovation (No)
P-311 invest in arctic research (Yes)
P-312 long-term energy framework (Yes)
P-316 rural family businesses (No)