Below you’ll find the application for a search warrant from Elections Canada (the warrant), attached appendices to the affidavit of EC official Ronald Lamothe, and a list of contradictions that the Conservative Party believes to exist between Lamothe’s affidavit and the supporting documentation.
First, the search warrant:
and the appendices to the affidavit sworn by Lamothe:
The Conservative Party has pointed out contradictions that exist between the affidavit sworn and supporting material provided in the appendices to the affidavit. Here are the contradictions that they emphasize (received via email (on the record) from the CPC):
In general, the text of the affidavit is extremely one-sided. It is replete with misstatement, misquote, incomplete quotes, and apparently deliberate omission of information which is contrary to the existence of their “theme” of a “scheme”. A particular concern would be some very serious distortions of the documents that the affidavit purports to paraphrase or refer to.
1. An outrageous example is the fabricated purported quote of Irving Gerstein, Chair of Conservative Fund Canada, contained at p. 54, para 229d. Compare the paraphrased “quote” in the text to the actual email from the person purporting to quote Mr Gerstein, contained at Appendix 25 of the document. The person quoting Mr Gerstein in the email does not say that Mr Gerstein even referred to a “switch” in advertising expenses, let alone that this would be necessary to avoid breaching the limit. The version of the quote in the affidavit is a fabrication by the affiant.
This fabrication undermines the credibility of all the other paraphrased quotes in the affidavit, especially where the quotes are from individuals whose statements are not contained in emails of third parties (as with Mr Gerstein) but rather were allegedly directly made in conversations with the investigators.
2. Another outrageous example is the repeated but baseless implication or innuendo that Party staff essentially fraudulently altered Retail Media invoices (pages 16, 23, 53, 54, 55). This is manifestly false: the explanation is contained at para 79, and reflected in the documents at App 19 and 23. Simply stated, one Retail Media invoice that lists some 40 ridings was obviously re-copied for ease of reference to refer to one riding at a time. The amount applicable to a given riding was unchanged.
3. This baseless implication of fraudulent invoicing is repeated at p. 25, para 92. There is reference to a Retail Media invoice for a riding of $10,657 for “radio”, while it is noted the Party invoice for that riding for “media buy” is $21,240.57. The affiant states that he “is not aware of the reason for the difference”. The reason is that he ignored another Retail Media invoice for the same riding contained at the previous page in the same Appendix (App 8, at pp. 211ff), in the amount of $10,584, for “TV”. The two Retail Media invoices together total $21, 241 – i.e., the same amount as carried forward onto the Party invoice.
4. At p. 25, para. 90, there is a paraphrased alleged quote of an official agent, Lise Vallieres, suggesting that she had never agreed to the advertising expenditure. It is disturbing that there is no reference here to the letter that her candidate sent to Elections Canada dated December 15, 2006 concerning his campaign’s participation in the regional media buy. The letter states as follows:
“Il s’agit d’un ‘placement collectif’ de publicité de plusieurs comtés lors de la dernière election générale (23 janvier 2006). Mme. Lise Vallières, agent officielle du soussigné, a accepté d’y participer de bonne foi.”
(see O’Grady affidavit in Federal Court filing)
5. Anyone familiar with federal electoral law and policy would be aware that every candidate and official agent must sign the following declaration to Elections Canada in relation expenditure listed in their return:
“I hereby solemnly declare that to the best of my knowledge and belief:
“1. the information contained in this return is correct; all election expenses in respect of the conduct or management of the election have been properly recorded;
“I make this solemn declaration conscientiously, believing it to be true and knowing that it is of the same force and effect as if made under oath and by virtue of the Canada Evidence Act.”
Yet, there is no reference to this in the several pages of paraphrased quotes from candidates and agents who were interviewed by the investigators.
6. Further, given the repeated implications in the alleged paraphrased quotes that candidates or agents did not enter binding contracts for the advertising, it is unbalanced that there is no reference to the considerable evidence in the emails that Mr Donison dealt directly with many of the local agents or candidates and he stated at the time that he was getting “solemn contractual commitments” from them (see Appendix 47).
7. Also disturbing is the innuendo at p. 54 that Party officials “chose not to seek a ruling…prior to ‘switching’.” The underlying e-mail (Appendix 21) is actually between two people in the media industry, not the Party, who simply discuss whether the Broadcasting Arbitrator should be consulted as to whether they can act as buying agents for local campaigns. There is no mention of “switching”.
Back in November of last year, the Conservative Party filed an affidavit (the “Donald Affidavit”) with the federal court. The document describes similar activities of other federal parties during previous elections and serves to rhetorically ask why the Conservative Party is singled out for what they argue is a common practice. The Conservatives maintain that these transfers for federal/regional/candidate ad buying is legal and that their position is defensible. The party is currently challenging what they argue is the selective misinterpretation of the Elections Act against them by Elections Canada. The Donald Affidavit elaborates on this argument.