Monday, January 18, 2010

Not so sweeping

There's no doubt that the Cons will be breathing at least somewhat of a sigh of relief in the wake of today's decision on Conadscam. But before anybody gets carried away in declaring the decison an absolute victory for the Cons, let's take a closer look at what was actually decided.

On my reading, the biggest win for the Cons comes from para. 217, where the general idea behind the in-and-out scheme was effectively held to be lawful:
(I)t was perfectly lawful for the Party to put a condition on the use of any sum of money that would be transferred to a local campaign. It was up to the campaign to accept or refuse such condition, just as it was up to the campaign to accept to participate in a regional media buy organized by the Party.
That finding effectively cuts to the core of the largest area of dispute surrounding Conadscam, representing a judicial declaration that a riding association doesn't ever have to have control over money in order to validly claim to have spent it. And to the extent it doesn't get overturned on an appeal, it effectively permits the Cons to run some form of a similar scheme in future elections.

But that isn't the end of the story by any means.

First, it's worth noting that as much as the Cons would like to pretend that the decision serves as a "test case" for all 67 of the candidates whose returns hadn't been accepted by Elections Canada, the reality is that Martineau J.'s decision makes specific mention of some factors which might make it inapplicable to other candidates.

For example, para. 214 includes a specific mention that for the returns before the court, no ads started running until after the candidate's agent had approved their expense, while para. 213 and 221 point out that there isn't any question that the documents for the two agents before the court were faked or forged. Where those factors are different for a particular agent, there may still be reason for the Chief Electoral Officer to reach a difference conclusion. Moreover, much of Martineau J.'s analysis deals with a lack of reasons by the Chief Electoral Officer, suggesting that some valid grounds may exist to reject returns in the future.

More significantly for the Cons, though, Martineau J. also rejected one key component of their scheme in the form of the attempt to argue that the party and the agents involved could allocated the "commercial value" of advertising as they saw fit. See para. 236-237:
The (Cons') allocation of the broadcasting costs for the three participating campaigns in the Halifax area is not logical and does not reflect the fact that the three ridings benefited equally from the impugned ads. The Halifax West riding ends up paying much more than the Halifax and Dartmouth ridings. The allocation in this case has to be made taking into consideration the equal participation by the ridings in the total buy arranged by RMI. The actual allocation is below the commercial value in the case of the Halifax and Dartmouth ridings, and above the commercial value in the case of the Halifax West riding.

The fact that the amounts charged by the Fund to the participating campaigns were related only to the amounts these campaigns could afford within their respective election spending limits, is irrelevant in establishing the fair commercial value of the impugned ads for each participating campaign. This purely arbitrary allocation, whether it was unilaterally determined by the Party or whether it was jointly agreed upon between the Party and each participating campaign, renders any claim for amounts in excess of the commercial value unreasonable under section 406 of the Act.
So to the extent the Cons might want to carry out similar schemes in the future, Martineau J.'s decision dictates that purchases for a particular area will be required to be allocated equally among the participating ridings, not arranged based solely on which ridings have room under their own spending caps. Which would almost certainly make the organization of such a plan far more difficult. And it would seem entirely possible that under Martineau J.'s analysis, some of the 2006 allocations from Con ridings may have been illegal once their ad buys are properly accounted for.

So while the Cons did indeed win on one major point of argument, they're a long ways from being out of the woods for their 2006 practices - and Martineau J.'s analysis may also make it a lot more difficult for them to engage in similar schemes in the future.

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