Thursday, January 22, 2009

Conservatives claim solicitor-client privilege over 5 million pages of documents

And it sounds like the Elections Commissioner has had enough: "Judge asked to unseal millions of Tory documents on '06 election." Yes, back in the news on a few fronts, it's the Conservative in-and-out election ad scheme which is alleged to have brought them $1+ million over their national spending limit in the 2006 election. It's 2009 and the Conservatives are still successfully delaying action in the Elections Canada investigation of the matter. Here's the crux of the roadblock facing the Elections Commissioner in his investigation:
Elections Canada is asking a judge to unseal up to a staggering five million pages of Conservative party documents tied to allegations the party broke federal election laws with a controversial advertising campaign in the 2006 election.

The demand is the first major development in the case since investigators raided Conservative party headquarters last year.

Elections Commissioner William Corbett and lawyers with the federal public prosecution service have asked the Ontario Superior Court of Justice to review the documents after the party claimed they contained confidential information that is protected by solicitor-client privilege.

The legal roadblock has "stymied" the investigation and prevented authorities from determining "whether the evidence points to additional investigative activities or provides a sufficient basis for the recommending or not recommending of charges," Elections Canada told the court.

"The investigation cannot adequately proceed because the number of documents over which privilege is claimed, and which investigators and our forensic accountants are therefore unable to review, results in potential evidence not being available to investigators," Ronald Lamothe said in an affidavit supporting the application.


A Conservative spokesman said the party would have no comment on the case until their arguments are made in court. (emphasis added)
A reminder that charges against the Conservative party in this matter may yet materialize and that the Elections Commissioner's own investigation remains ongoing, in addition to the civil suit.

Also of note in media coverage today of this scandal, the Ottawa Citizen's report which points out the advantage obtained by Mr. Harper in having appointed Irving Gerstein to the Senate. Mr. Gerstein may now seek to avoid any appearance before the Commons' Ethics Committee should that investigation into the in-and-out matter resume:
One potentially important witness will not likely be available, however: Irving Gerstein, the party's official agent during the 2006 election and head of the party's fundraising arm, was appointed to the Senate before Christmas. As a parliamentarian, he cannot be summoned to testify before a committee.

Mr. Gerstein was among a group of Tory officials summoned to appear before the ethics committee last summer, but he did not attend. The party said the bailiff had served the summons on Mr. Gerstein's housekeeper, not on Mr. Gerstein, who was out of the country and unavailable to attend.
...
Mr. Gerstein could still voluntarily appear before the committee, as cabinet ministers routinely do. An aide in his new parliamentary office said Mr. Gerstein was unavailable to comment on the issue. Mr. Sparrow said it was premature to speculate on what topics a committee might look at or which witnesses it would call.

In an affidavit filed in support of the search warrant last spring, an Elections Canada investigator referred to Mr. Gerstein and claimed the contentious advertising purchase program was "known to and implemented by the most senior officials of the Conservative Party of Canada and the Conservative Fund Canada."
Another Senate appointee who may find himself in an unwelcome spotlight as he enters the upper chamber. If the Ethics Committee investigation continues, Mr. Gerstein's outstanding summons will have to be addressed.

Onwards with in-and-out then in 2009...

Update: CBC's report suggests what the Conservatives did in order to make so many documents supposedly solicitor-client privileged:
...lawyers argue that the Conservatives copied their lawyer on even the most mundane emails, suggesting he wasn't offering legal advice but was one of those organizing the advertising campaign.