Grounds for investigation

There's been plenty of talk over the past week about a renewed investigation surrounding Stockwell Day's entry into the House of Commons. I tend to think the most interesting story here is actually the sheer disorganization of the Cons as they took power: how in the world could they have apparently paid no attention to 30 boxes of documents left behind in the Opposition leader's office? (And for that matter, why was anything still left from Stockwell Day's stay which they didn't think would be of some use in the future?)

But that aside, let's take a closer look at the Criminal Code sections which may apply to those involved in the Hart/Day deal.

The potentially applicable sections are section 124 and section 125 of the Criminal Code:

124. Every one who

(a) purports to sell or agrees to sell an appointment to or a resignation from an office, or a consent to any such appointment or resignation, or receives or agrees to receive a reward or profit from the purported sale thereof, or

(b) purports to purchase or gives a reward or profit for the purported purchase of any such appointment, resignation or consent, or agrees or promises to do so,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

125. Every one who:...

(b) solicits, recommends or negotiates in any manner with respect to an appointment to or resignation from an office, in expectation of a direct or indirect reward, advantage or benefit,...

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The main difference between the two sections appears to be that section 125 doesn't require that any deal actually be reached: the mere act of "negotiat(ing) in any manner" is enough to result in an offence. Any doubt about the final terms offered to Hart would thus be irrelevant under that section to the extent that there was any discussion of a "resignation" from an "office".

But then, given that the potential punishment is the same for both, it appears clear that both are considered equally serious offences.

So what does an "office" mean? That term is defined in section 118:

“office” includes
(a) an office or appointment under the government,
(b) a civil or military commission, and
(c) a position or an employment in a public department;

Let's note here an important difference between the Day case and some other examples which might seem similar.

In the Ontario Libs' example which Peter Van Loan used to try to deflect any discussion in Question Period, the seat in question was held by an independent MP who wasn't running again. Likewise, in the Cons' Alan Riddell fiasco, the seat was (and remains) held by the Libs.

As a result, nothing more was up for grabs in either of these questions than a party's nomination. And that plainly doesn't result in either of the offences which might apply to the Day case, since no "office" was involved - however unseemly it may be for a nomination to be purchased or sold.

In contrast, Hart's seat in the House of Commons would much more likely fall into the definition of "office". There might be a technical argument available that since the term "resignation" is linked to the term "appointment" in both sections, the sections don't deal with elected positions. But there's case law (see paragraphs 13-14 of this case to the effect that the list in section 118 is not a closed one, and that the definition is intended to include "‘a position of duty, trust or authority, esp. in the public service or in some corporation, society or the like’". As a result, I don't think many people would want to take a chance on that particular argument to defend against a serious criminal charge.

And unless there's some reason to doubt the accuracy of the documents found by the Libs, it's hard to see what other element of the offence would be missing, as Hart's own letter would indicate that his resignation was directly tied to the negotiated benefits.

Of course, it remains to be seen what any investigation will turn up. But the incident at the very least highlights what seems to be a lack of concern for the law among the Cons and their predecessors. And if the Cons' best explanation is that they consider the matter done with, they may rightly be in for a surprise.