Court of Appeal for Ontario

Date: September 13, 2017

Docket: C61958

Judges: Strathy C.J.O., Benotto and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Dean Del Mastro Appellant

Counsel:

• Scott Fenton, for the appellant
• Croft Michaelson, Q.C. and Brendan Gluckman, for the respondent

Heard: June 22, 2017

On appeal from the judgment of Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated April 5, 2016, with reasons reported at 2016 ONSC 2071, [2016] O.J. No. 1731, dismissing an appeal from the convictions entered on October 31, 2014, by Justice Lisa Cameron of the Ontario Court of Justice, with reasons reported at 2014 ONCJ 605, [2014] O.J. No. 5482.

Strathy C.J.O.:

A. Synopsis

[1] The appellant, Dean Del Mastro, the successful candidate for the riding of Peterborough in the 2008 federal election, was tried in the Ontario Court of Justice on charges under the Canada Elections Act, S.C. 2000, c. 9 ("CEA"). The Crown alleged that he had circumvented election expense limits by using his own money to purchase voter canvassing and "get-out-the-vote" ("GOTV") services, persuaded the supplier to send him a false invoice and participated with his official agent in filing a false election campaign return.

[2] He was convicted of exceeding his election expense limit (count one), of wilfully exceeding his personal contribution limit (count two) and of filing a false or misleading election campaign return (count three). He was sentenced to 30 days in jail together with a four month conditional sentence and 18 months' probation. The trial judge also imposed a restitution order requiring him to pay $10,000 to the Peterborough Electoral District Association.

[3] Del Mastro appealed his conviction and sentence to the Superior Court of Justice. His appeals were dismissed by the Summary Conviction Appeal Judge ("SCAJ"), subject only to a variation of his sentence setting aside the restitution order. He now appeals, with leave, to this court.

[4] For the reasons set out below, I would dismiss the appeal.

[5] On the first two counts, I reject his submission that the trial judge and the SCAJ erred in their interpretation of the CEA by failing to consider whether the work for which he was billed was actually used by his campaign and whether the amount he was billed reflected the commercial value of the work.

[6] On the third count, it is my view that Del Mastro was properly found guilty as a party to an offence committed by his official agent. The party liability provisions of the Criminal Code apply to offences under the CEA. All of the provisions of the Code are incorporated into offences created by other federal legislation by virtue of s. 34(2) of the Interpretation Act, R.S.C. 1985, c. I-21, unless that legislation otherwise provides. I find that the CEA does not otherwise provide.

[7] I would decline to consider Del Mastro's assertion that the trial judge erred in drawing an adverse inference from his failure to call certain witnesses. Del Mastro neither sought nor obtained leave to appeal on this issue.

[8] Del Mastro abandoned his sentence appeal in oral argument.

B. The Canada Elections Act

[9] To give context to the facts, issues and arguments on this appeal, I begin by explaining how the CEA regulates election financing and, in particular, campaign spending.

[10] The primary purpose of the federal election financing system, embodied in the CEA, is to ensure that Canadian elections are fair and democratic and that all Canadians have a fair and equitable chance to be heard and elected. This is achieved, in part, through election expense limits and the provision of public financing to qualified candidates through partial expense reimbursement. In return, parties and candidates must adhere to strict spending and financial reporting rules, with compliance monitored by Elections Canada.

[11] The CEA regulates election financing by, among other things: (a) limiting political contributions, both in the amount that an individual can contribute and by prohibiting contributions from all but individuals; (b) imposing election expense limits on individual candidates and on registered parties; (c) providing for partial reimbursement, out of public funds, of election expenses incurred by candidates and registered parties; and (d) requiring candidates and registered parties to disclose their electoral campaign expenses and contributions by filing returns within specified time limits and by providing for auditing of those returns to demonstrate compliance with the legislation.

[12] By requiring reporting and auditing of campaign contributions and election expenses, the CEA ensures accountability and transparency, thereby enhancing public confidence in the fairness of the electoral process.

[13] The election expense limits provide a level playing field for those seeking elected office in two ways relevant to this appeal. First, there is a limit on the amount of expenses a candidate may incur during an election campaign. In 2008, the limit applicable to the Peterborough riding was $92,566. Second, the CEA also limits the amount that a candidate may personally contribute to his or her campaign. In 2008, the limit was $2,100.

[14] These limits are tied to the definition of "election expense". Section 443(1) of the CEA provides that "[n]o candidate, official agent of a candidate or person authorized under paragraph 446 (c) to enter into contracts shall incur election expenses in an amount that is more than the election expenses limit calculated under section 440." Under s. 497(1)(s), any official agent or candidate who exceeds the election expenses limit is guilty of a strict liability offence.

[15] A candidate is entitled to partial reimbursement of election expenses, provided he or she complies with the reporting requirements (ss. 464, 465). At the relevant time, candidates were entitled to reimbursement of 60% of allowable election expenses.

[16] Section 406 defines an "electoral campaign expense" of a candidate as "an expense reasonably incurred as an incidence of the election", including an election expense, a personal expense, and any fees of the candidate's auditor and costs incurred as a result of a recount.

[17] The definition of "election expense" is set out in s. 407, which is the central provision at issue in this appeal. It defines "election expense" in a general way in ss. 407(1):

(1) An election expense includes any cost incurred, or non-monetary contribution received, by a registered party or a candidate, to the extent that the property or service for which the cost was incurred, or the non-monetary contribution received, is used to directly promote or oppose a registered party, its leader or a candidate during an election period.

[18] Section 407(3) identifies certain expenses that are expressly included within the definition, notably, in ss. 407(3)(e), voter surveys:

(3) An election expense referred to in subsection (1) includes a cost incurred for, or a non-monetary contribution in relation to,

(a) the production of advertising or promotional material and its distribution, broadcast or publication in any media or by any other means;

(b) the payment of remuneration and expenses to or on behalf of a person for their services as an official agent, registered agent or in any other capacity;

(c) securing a meeting space or the supply of light refreshments at meetings;

(d) any product or service provided by a government, a Crown corporation or any other public agency; and

(e) the conduct of election surveys or other surveys or research during an election period.

[19] Subsection 407(4) states:

(4) In subsection (1), cost incurred means an expense that is incurred by a registered party or a candidate, whether it is paid or unpaid.

[20] The parties endorse the test for an election expense set out in Callaghan v. Canada (Chief Electoral Officer), 2010 FC 43, [2011] 2 F.C.R. 3, rev'd 2011 FCA 74, [2011] 2 F.C.R. 80, at para. 120: (i) it must have been incurred by the candidate reporting it; (ii) the goods or services for which the expense was incurred must be used during the election period; and (iii) the goods and services must be used to directly promote or oppose a candidate. The third element was referred to in that case as the "purpose test".

[21] Every candidate must have an official agent, who is responsible for administering the candidate's financial transactions for the electoral campaign and for reporting them in accordance with the CEA (s. 436). The official agent must open a separate bank account, in his or her name as official agent, for expenses. All financial transactions in relation to the campaign that involve the payment or receipt of money are to be paid from or deposited to the account (s. 437(1), (3)). After the election, the account must be closed and the official agent must provide a final statement of the account to the Chief Electoral Officer ("CEO") (s. 437(4), (5)). The official agent or the candidate's chief financial agent must provide the CEO with an audited electoral campaign return showing electoral and other expenses and the commercial value of non-monetary contributions received by the candidate, among other things (ss. 451-462).

[22] It is an offence for a candidate or an official agent to provide the CEO with a return that he or she knows or ought reasonably to know is false or misleading or does not substantially set out the information required to be filed.

[23] The candidate's official agent is the only person permitted to pay expenses or accept contributions in relation to the campaign: see ss. 438(2), 438(4). No person other than the candidate, his or her official agent, or a person authorized to do so by the official agent is permitted to incur expenses in relation to the campaign: see s. 438(5).

[24] With this context, I turn to the events giving rise to the charges against the appellant and the evidence at trial, as it relates to the issues on appeal.

C. Background

[25] The appellant does not challenge the underlying findings of fact made by the trial judge as confirmed by the SCAJ. His appeal is based on alleged legal errors in the interpretation of the CEA. Accordingly, I propose to give only a brief summary of the material background facts. In the next section, I will summarize the key conclusions in the courts below.

[26] The appellant was the incumbent Member of Parliament for the federal riding of Peterborough. He ran for re-election in the 2008 federal election. The election writ period was from September 7, 2008 to October 14, 2008.

[27] The allegations against the appellant arose from his dealings with Frank Hall ("Hall"), the president of Holinshed Research Group ("Holinshed"). Holinshed conducted voter identification telephone campaigns, contacting potential voters to determine whether they were likely to support the candidate. It also conducted GOTV services, in which voters identified as favourable to the candidate were contacted on election day to encourage them to vote.

[28] Hall testified that the appellant spoke to him before the writ period about using Holinshed's services for voter identification and GOTV services in the election. Hall sent the appellant a quote for $21,600, excluding GST.

[29] The appellant did not initially pursue the quote, because he thought he would be eligible for similar services provided by the Conservative Party. Shortly after the start of the election, when the anticipated party support was not forthcoming, the appellant renewed discussions with Hall, who sent him a new quote from Holinshed, this time for $21,000, including GST. The appellant's campaign manager, John McNutt ("McNutt") faxed back a signed and accepted copy of the invoice dated September 15, 2008.

[30] The appellant initially took steps, through his official agent Richard McCarthy ("McCarthy") to pay the invoice through his campaign account. It was soon realized, however, that the payment of Holinshed's invoice would put the appellant's campaign over his expense limit. Hall was advised that the campaign could not pay the invoice. Predictably, Holinshed downed tools and stopped making voter identification calls.

[31] The trial judge accepted Hall's evidence that on October 2, 2008, the appellant told him that he wanted the calling resumed as soon as possible and that he would pay for it himself. The appellant asked Hall to "work with" him on the invoicing for Holinshed's services.

[32] Hall testified that on about October 9, 2008, the appellant wrote a personal cheque to Holinshed for $21,000. The cheque was back-dated to August 18, 2008 – that is, a date before the election writ period.

[33] With the funds in hand and its invoice paid, Holinshed resumed voter identification calling and also provided GOTV services on election day.

[34] Two months after the election campaign ended, on December 12, 2008, Hall sent the appellant an invoice, dated September 14, 2008, in the amount of $1,575, for "limited voter GOTV".

[35] Like all candidates, the appellant's campaign was required to file an electoral campaign return with Elections Canada. Both the candidate and official agent are required to solemnly declare that the information contained in the return is correct and that election expenses have been properly recorded.

[36] The appellant's return listed the amount paid to Holinshed as $1,575. His personal payment of $21,000 was not reported. The total amount listed for election campaign expenses was $91,770, ostensibly just under the election expense limit of $92,566. The appellant signed the solemn declaration on February 10, 2009 and McCarthy signed it on February 11, 2009. The return was then filed with Elections Canada.

[37] Some time later, the appellant and Hall had a falling out. Hall went to Elections Canada and spilled the beans about the work done by Holinshed for the appellant's campaign during the 2008 election. These charges ensued.

D. Proceedings and Decisions Below

(1) Trial

[38] The appellant was tried with McCarthy in the Ontario Court of Justice over the course of 15 days.

[39] The Crown's position at trial was that the appellant's personal payment of $21,000 to Holinshed was an election expense and that, knowing the payment brought his campaign over its spending limit, the appellant and McCarthy attempted to conceal the expense, through a false invoice for $1,575.

[40] The defence position was that Holinshed's $21,000 invoice did not reflect the appellant's discussions with Hall and was signed in error. The defence also took the position that in order to prove excessive election spending, the Crown was required to prove that the expense was used to directly promote or oppose a candidate during the election period. Defence counsel submitted that there was no proof that the work done by Holinshed was actually used to directly promote the appellant.

[41] The trial judge rejected this argument. She held that the categories of expenses identified in s. 407(3) of the CEA are deemed to be election expenses. Since the voter identification and GOTV work done by Holinshed was a deemed election expense under s. 407(3)(e), it was unnecessary to consider the extent to which the services were used to directly promote the candidate. If it were necessary to decide whether Holinshed's services were used to directly promote the appellant, the trial judge found they were.

[42] The trial judge also concluded that it was unnecessary to consider the commercial value of the services because commercial value was only relevant for non-monetary contributions. In her view, commercial value was not a concept that applied to expenses generally.

[43] The trial judge stated that she had concerns about the appellant's credibility on the contested issues. She noted that there were a number of inconsistencies and improbabilities in his evidence.

[44] The trial judge also drew an adverse inference against the appellant's credibility from his failure to call three witnesses – his brother Doug Del Mastro, who was in charge of the campaign's database, Bruce Fitzpatrick ("Fitzpatrick"), who was running the appellant's in-house GOTV operation, and McNutt, his campaign manager. She found that all three would have been in a position to provide evidence on important issues.

[45] Although the trial judge said that she had some hesitation about Hall's evidence, her hesitation was overcome by the ample corroboration of that evidence.

[46] The trial judge found the appellant guilty on count one, of incurring election expenses that exceeded the campaign limit, and on count two, of wilfully exceeding his personal contribution limit. She found him guilty on count three, as a party to filing a false or misleading electoral campaign return, and on count four, of filing an electoral campaign return that did not set out the required information. The latter charge was stayed under the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.

(2) Summary Conviction Appeal

[47] The appellant appealed his convictions and sentence to the Superior Court of Justice and the Crown cross-appealed his sentence. The appeals were dismissed, with the exception of the restitution order, which was set aside.

[48] The SCAJ rejected the appellant's argument that the trial judge was required to determine the actual value of the proven telephone work, how much of the telephone work was actually done and how much money was actually earned by Holinshed during the election period.

[49] The SCAJ held that commercial value is only relevant when it is necessary to determine the value of a non-monetary contribution. Since this case did not involve a non-monetary contribution, the commercial value of the services was not relevant. All that mattered was whether the appellant incurred a cost in relation to Holinshed's services during the election period. If so, that cost was an election expense under s. 407(3) of the CEA.

[50] The SCAJ concluded that the trial judge properly drew an adverse inference from the appellant's failure to call Fitzpatrick and Doug Del Mastro as witnesses. However, she erred in drawing an adverse inference from the failure to call McNutt, because he did not testify due to an agreement between the Crown and the defence. The SCAJ held, however, that it was appropriate to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code because there was no substantial wrong or miscarriage of justice.

[51] The SCAJ also rejected the appellant's argument that he could not be convicted as a party to an offence under the CEA through the application of the Code. He concluded that by virtue of s. 34(2) of the Interpretation Act, all the provisions of the Code apply to offences created under another Act of Parliament, unless Parliament has clearly expressed an intention to the contrary. None of the provisions in the CEA manifested a clear intention of Parliament to preclude resort to the party liability provisions of the Code. Therefore, it was possible for the appellant to be convicted as a party to an offence under the CEA.

[52] The SCAJ dismissed the appeal and cross-appeal from sentence, with the exception of the $10,000 restitution order. The offences were serious and struck at the heart of the democratic electoral process. The trial judge's analysis was a well-reasoned balancing of the sentencing principles. The SCAJ set aside the restitution order, however, because there was no evidence the Peterborough Electoral District Association suffered damages.

E. The Issues

[53] The appellant raises three issues:

First: That the trial judge erred in her interpretation and application of the definitions of "election expense" under s. 407 of the CEA, and of "commercial value" under s. 2(1) of the CEA, causing her to ignore evidence relevant to whether the appellant exceed his campaign expense limit.

Second: That the trial judge erred in determining, on counts three and four, that the appellant was liable as a party to the offence committed by his official agent, McCarthy, and that the SCAJ erred in finding that the third party liability provisions of the Criminal Code apply to prosecutions under the CEA by operation of s. 34(2) of the Interpretation Act.

Third: That the trial judge erred in drawing an adverse inference from the appellant's failure to call three witnesses, namely John McNutt, Bruce Fitzgerald and Doug Del Mastro.

F. Analysis

(1) The Statutory Interpretation Issue

[54] The appellant submits that statutory interpretation is the core issue on the appeal. I agree.

[55] On the appellant's interpretation, the "purpose test" animating the definition of an election expense requires an analysis of the extent to which goods or services purchased as an "election expense", either generally in s. 407(1) or in one of the enumerated categories in s. 407(3), are actually used or consumed for the purpose of the election campaign. It also requires, he says, an analysis of the "commercial value" of that property or service.

[56] In other words, as I will explain shortly, the appellant says that it is not enough for the Crown to establish that the candidate spent $100 on particular goods or services that would qualify as an election expense. The Crown must also establish the extent to which the goods or services were actually used in the campaign and the commercial value of the amounts used.

[57] The appellant relies in part upon the definition of "non-monetary contribution", a term used in s. 407(1) and (3). That definition, contained in s. 2(1), is as follows:

non-monetary contribution means the commercial value of a service, other than volunteer labour, or of property or of the use of property or money to the extent that they are provided without charge or at less than their commercial value.

[58] The definition of "commercial value", in s. 2(1), is:

commercial value, in relation to property or a service, means the lowest amount charged at the time that it was provided for the same kind and quantity of property or service or for the same usage of property or money, by

(a) the person who provided it, if the person is in the business of providing that property or service; or

(b) another person who provides that property or service on a commercial basis in the area where it was provided, if the person who provided the property or service is not in that business.

[59] The appellant submits that, assuming there was a contract with Holinshed to carry out telephone polling services for $21,000, it was necessary for the trial judge to determine (a) how much of the polling work was actually performed by Holinshed; (b) the extent to which that work directly promoted the appellant's campaign; (c) the actual commercial value of the proven polling work, regardless of what the contract stated or what Holinshed was actually paid; and (d) that this value caused the campaign to exceed its limit. The courts below erred, he submits, in failing to consider the extent to which Hall's services were actually used by the appellant to promote his campaign. They also erred in determining that the application of s. 407(3) made it unnecessary to consider the application of s. 407(1), in refusing to admit the evidence of the appellant's staff concerning the extent to which Holinshed's work was actually used in the campaign and in failing to consider the commercial value of Hall's services.

[60] The starting point for the statutory interpretation analysis is Driedger's "modern principle", first expressed in his 1974 edition and repeatedly applied by Canadian courts ever since: see Re. Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 21. That principle holds that:

the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[61] As Ruth Sullivan notes, statutory interpretation is a multi-dimensional exercise and requires a court to consider whether a particular interpretation complies with the legislative text, promotes the intention of the legislature, and produces a result that is reasonable and just, in compliance with accepted legal norms: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at pp. 7-10.

[62] As discussed earlier, the purpose of the electoral financing regime contained in the CEA is to ensure that elections are fair to both candidates and electors. The courts have affirmed that electoral finance rules and spending limits play a critical role in preserving the integrity of the electoral process. In Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, Iacobucci J. described electoral financing, at para. 72, as an "integral component" of the electoral process and said that "it is of great importance that the integrity of the electoral financing regime be preserved." In Conservative Fund Canada v. Canada (Elections), 2010 ONCA 882, 275 O.A.C. 175, leave to appeal refused, [2011] S.C.C.A. No. 65, at para. 93, Epstein J.A. concluded that spending limits are the primary instrument used by Parliament to promote the egalitarian model of elections.

[63] In Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, Bastarache J. spoke of the regulation of electoral spending as creating a level playing field for elections. Referring to the court's decision in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, he observed, at para. 61, that spending limits are necessary to prevent the affluent from monopolizing election discourse. He continued, at para. 62:

The Court's conception of electoral fairness as reflected in the foregoing principles [from Libman] is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation; see C. Feasby, "Libman v. Quebec (A.G.) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model" (1999), 44 McGill L.J. 5. Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power. The state can equalize participation in the electoral process in two ways; see O. M. Fiss, The Irony of Free Speech (1996), at p. 4. First, the State can provide a voice to those who might otherwise not be heard. The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties. Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well. In Canada, electoral regulation has focussed on the latter by regulating electoral spending through comprehensive election finance provisions. These provisions seek to create a level playing field for those who wish to engage in the electoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by another. In contrast, the libertarian model of elections favours an electoral process subject to as few restrictions as possible.

[64] This legislative purpose informs the interpretation of ss. 407(1) and 407(3)(e). The legislative history of the latter provision also informs its interpretation. It was added to the CEA by amendment effective January 1, 2004: An Act to Amend the Canada Elections Act and the Income Tax Act, S.C. 2003, c. 19, s. 26. Before that time, Elections Canada had issued a guideline in 1988 expressing the view that the cost of electoral survey information was not an electoral expense because it did not result in the promotion of the party, its leader or candidates. The logic of this statement was criticized by the Royal Commission on Electoral Reform and Party Financing (the "Lortie Commission"): Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy (Final Report) (Ottawa: Minister of Supply and Services Canada, 1991), at p. 155. Thus, the addition of s. 407(3)(e) to the CEA was a response to the previous interpretation of s. 407(1) that had excluded election surveys from the definition of election expense.

[65] As the Lortie Commission observed, at p. 152 of its report, because the concept of "election expense" is such a key component of the spending limits framework, its definition must be clear and unambiguous so that candidates and those who work on election campaigns, including official agents, know exactly where they stand.

[66] In my view, s. 407(1) and s. 407(3)(e) are clear and unambiguous. For convenience, I set them out again:

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

(3) An election expense referred to in subsection (1) includes a cost incurred for, or a non-monetary contribution in relation to,

(e) the conduct of election surveys or other surveys or research during an election period.

[67] Section 407(1) requires an examination of "the extent that the property or service for which the cost was incurred … is used to directly promote … a candidate during an election period." As the Federal Court observed in Callaghan, at para. 120, this requires: (i) that the cost be incurred by the candidate, (ii) that the property or services be used during the election period and (iii) that the property or services be used for the purpose of promoting the candidate. It does not matter when the cost was incurred, whether it was paid or not, or when it was paid.

[68] I agree with the respondent that the various sub-categories in s. 407(3) can properly be regarded as "deemed election expenses", because they directly promote the candidate during the election period. Under sub-paragraph 407(3)(e), as with its neighbours (sub-paras. (a) advertising materials, (b) remuneration of an official agent, (c) the cost of meeting space and light refreshments at meetings), the cost of election surveys or research during an election period is deemed to directly promote the candidate during an election period. No analysis is required of whether it does so in fact.

[69] The appellant's interpretation would add two other requirements to s. 407(1) and 407(3). First, it would require an examination of the extent to which the product or service was actually used or consumed by the candidate. Second, it would also require an examination of the commercial value of the product or service, apart from its cost. Thus, on this interpretation, a candidate need not report the money spent to purchase goods or services. He or she need only report the commercial value of that portion of the goods or services that he or she actually uses or consumes. The appellant says that the Crown failed to prove these amounts in relation to Holinshed's services and that the trial judge erred in refusing to permit him to adduce evidence to prove that he did his own polling and GOTV work and that he did not really consume much of what Holinshed was contracted to provide.

[70] The appellant's interpretation can best be understood and evaluated by the examples used in his submissions and put to him in argument.

[71] He gave the example of a candidate purchasing election lawn signs for $100. This would fall within s. 407(3)(a): production of advertising material. During argument, the court suggested the example of a candidate purchasing 100 cupcakes for a campaign reception, an expense under s. 407(3)(c): supply of light refreshments at meetings.

[72] On the appellant's interpretation of s. 407(1) and (3), the candidate need only account for the value of the lawn signs actually used and the number of cupcakes actually consumed at the meeting. Thus, if only half the lawn signs were planted in lawns and the rest languished in a worker's garage, or only 50 cupcakes were eaten because attendance at the meeting was less than expected, the candidate need only account for half the cost. And, the appellant says, the candidate need only account for the "commercial value" of what was consumed. So if he or she paid more than market value for the signs or the cupcakes, he or she only need account for the market value of what was used.

[73] In my view, there is nothing in the statutory language that supports this interpretation. Nor does it comport with the intention of Parliament. It would result in an election expense regime that would be uncertain, unworkable and impractical. Candidates and their agents would never know, at any point in time, where they stood on their election expense limits because they would have no way of knowing what had been or would be "consumed" and whether its commercial value was more, or less, than the amount actually paid. The reporting of election finances would become a nightmare if these sort of calculations were required. The auditing and investigation of expenses for hundreds of candidates across the country would be impractical, time consuming and expensive. Instead of being simple and transparent, the reporting, auditing and disclosure of election expenses would be confusing and opaque.

[74] The appellant introduces a concept that is not contained in the legislation – a requirement to determine the "value" of the product or service actually used or consumed. Sections 407(1) and (3) speak of an "expense" or a "cost incurred." In keeping with the object of the legislation, these are simple, easily-understood terms that can readily and easily be applied. An invoice can be produced to establish an expense.

[75] The appellant's argument that the Crown must establish the commercial value of the property or service is also flawed.

[76] The term "commercial value" applies to non-monetary contributions received by a candidate and used to promote the candidate during an election period. This is evident from the definitions of "commercial value" and "non-monetary contribution" in s. 2(1) of the CEA, which I restate here for reference:

commercial value, in relation to property or a service, means the lowest amount charged at the time that it was provided for the same kind and quantity of property or service or for the same usage of property or money, by

(a) the person who provided it, if the person is in the business of providing that property or service; or

(b) another person who provides that property or service on a commercial basis in the area where it was provided, if the person who provided the property or service is not in that business.

non-monetary contribution means the commercial value of a service, other than volunteer labour, or of property or of the use of property or money to the extent that they are provided without charge or at less than their commercial value.

[77] Section 407(1) draws within the meaning of "election expense" any "non-monetary contribution received", to the extent that that contribution is used to directly promote the candidate during the election period. This requires a determination of the "commercial value" of the non-monetary contribution. There is no statutory requirement to determine the commercial value of the "cost incurred" as an election expense.

[78] It is noteworthy that, according to the evidence accepted by the trial judge, the appellant and his campaign team realized early in the campaign that they would exceed his campaign limit if they incurred the Holinshed expense. This was not based on an assessment of the commercial value of the services or on an estimate of how much of the services would be consumed. It was based on the invoice that Holinshed had given them. The appellant's campaign knew almost immediately that paying the bill would put the appellant off-side on his expenses. This was why the appellant paid the bill personally and then "worked with" Hall to procure a false invoice.

[79] For these reasons, I would reject the appellant's ground of appeal based on the interpretation of the CEA. The Act is clear and unambiguous that the various sub-categories under s. 407(3) are deemed election expenses, in the sense that these types of expenses are deemed to directly promote the candidate during an election period. The measure of this expense is the cost incurred by the candidate, not the value of goods or services "consumed". The concept of "commercial value" only applies in the context of non-monetary contributions and has no application to goods or services purchased by a candidate.

(2) The Party Liability Issue

[80] This ground of appeal relates to counts three and four.

[81] Counts three and four asserted that the appellant, a candidate, and McCarthy, his official agent, filed a campaign return that omitted to report a contribution from the appellant and omitted to report an election expense of $21,000, instead reporting an election expense of $1,575. In so doing, the counts alleged, they provided an election return to the CEO that they knew or ought reasonably to have known contained a material statement that was false or misleading and failed to set out the information required, thereby committing offences contrary to ss. 497(3)(v) and 500(5) of the CEA.

[82] The trial judge found McCarthy guilty of the offences and found the appellant liable as a party. The appellant submits, as he did in the court below, that s. 497(3)(v) applies only to agents and that he cannot be liable as a party to an offence committed by McCarthy.

[83] The SCAJ held that the party liability provisions of the Criminal Code apply to the CEA by virtue of s. 34(2) of the Interpretation Act, which provides:

34(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides. [Emphasis added.]

[84] The CEA does not expressly "otherwise provide". The appellant submits, however, that the CEA contains a complete code with respect to election offences, which impliedly excludes grounds of liability not expressly stated. He submits that the offence provisions of the CEA are exhaustive in defining the persons who may be liable for certain offences as principals and the circumstances in which persons other than a principal may be criminally liable. He relies on the principle of interpretation expressio unius est exclusio alterius ("to express one thing is to exclude another"): see Sullivan, at p. 248.

[85] The appellant points out that there are specific provisions in the CEA dealing with offences committed by numerous individuals and entities, including not only candidates and their official agents, but also "election officers", "returning officers", "poll clerks", broadcasters, "financial agents", and "electors", to name a few. On the other hand, the statute also creates offences that may be committed by any party, preceded by the words, "Every person … who …". For example, ss. 480 and 481 begin with the words "Every person is guilty of an offence who…".

[86] The appellant notes as well that some provisions of the CEA expressly extend liability to persons other than a principal, for example:

• s. 320 (a candidate or a person acting on their behalf);
• s. 322 (a landlord or person acting on their behalf);
• s. 330 (no person shall use, aid, abet, counsel or procure the use of a broadcast station outside Canada during an election with intent to influence voting);
• s. 351 (a third party may not circumvent an election expense limit);
• s. 423(2) (no registered party and no third party shall collude with each other for the purpose of circumventing the maximum amount of permitted election expenses of a registered party);
• s. 443(2) (prohibits collusion between a candidate, official agent, person authorized or third party for the purpose of circumventing the election expense limits); and
• s. 478.15(2) (prohibits collusion by any person to circumvent or attempt to circumvent the expense limit for an electoral district referred to in para. 478.14).

[87] The appellant says that had Parliament intended the party liability provisions of the Code to apply to the CEA, it would have been unnecessary to spell out with such great particularity the parties who are liable for specific forms of misconduct and the circumstances in which criminal liability could rest with someone other than the named principal.

[88] The SCAJ found that the law is well settled that s. 34(2) of the Interpretation Act applies to offences created under another statute unless Parliament has clearly expressed a contrary intention: see Ukrainetz v. Canada (Attorney General), (1995), 128 Sask. R. 308 (C.A.). The fact that the statute is silent, or contains some provisions touching on the same matter as the Code, is not sufficient to manifest a contrary intention: see R. v. Ross, (1991), 68 C.C.C. (3d) 380 (B.C.C.A.), at pp. 382-383; R v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, at pp. 629-630.

[89] The SCAJ expressed his conclusions on this issue, at paras. 150-152:

While the appellant references a few sections of the CEA and then submits that the CEA "has its own provisions in which it very carefully states which offences are to include party liability", this submission finds no support in the text of the CEA.

Simply put, none of the provisions of the CEA that the appellant referenced manifest a clear intention of Parliament to preclude resort to s. 21 of the Criminal Code in relation to the myriad of offences created under the CEA. The CEA is not a complete code. The CEA does not expressly oust the provisions of the Criminal Code. This ground of appeal fails.

The trial judge did not err in convicting Del Mastro as a party to the offence relating to the filing of the false and misleading campaign return.

[90] The Supreme Court considered s. 34(2) (then s. 27(2)) of the Interpretation Act in R. v. Multiform Manufacturing Co. The issue in that case was whether a provision in the Bankruptcy Act, R.S.C. 1970, c. B-3, authorizing searches ousted the provisions of the Criminal Code for obtaining a search and seizure warrant. The Supreme Court noted, at p. 630, that "in cases where the statute was silent as to search and seizure powers, it could not be said that s. 27(2) did not apply where there was not in the statute an 'enactment [that] otherwise provides'."

[91] Cases where the courts have held that a statute "otherwise provides" generally involve more than mere silence or duplication– typically, a provision that is clearly contrary to the Code provisions.

[92] For example, in Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53, La Forest J. held that a provision in the Income Tax Act otherwise provided and ousted the Code provision. The provision at issue involved search warrants. Under the Income Tax Act, the power to issue a search warrant was vested in a Superior Court or Federal Court judge. Under the Code, a justice of the peace had the power to issue search warrants. Thus, the Income Tax Act provision was held to be a special provision providing otherwise as contemplated by s. 34(2) of the Interpretation Act.

[93] In Ukrainetz v. Canada, the Saskatchewan Court of Appeal held that to preclude the use of the Code requires "a clear expression of Parliament's intention to do so". The court concluded there was no such clear intention. The Tax Rebate Discounting Act provided for fines, but did not specifically provide that imprisonment could be imposed on default. The Code had such a provision and the court concluded it applied because of s. 34(2) of the Interpretation Act. Thus, the mere absence of a reference was not enough to "otherwise provide". It had to be clearly expressed.

[94] The same issue of imposing imprisonment on default to pay a fine was addressed by the British Columbia Court of Appeal in R. v. Ross. Like the Supreme Court and the Saskatchewan Court of Appeal, the court concluded that Parliament's silence does not "otherwise provide."

[95] The court in Ross also considered the argument that the fine provisions in the Unemployment Insurance Act were a complete code and excluded all other penalties by virtue of the maxim expressio unius est exclusio alterius. The court held, at p. 383, that the expressio unius maxim was necessarily displaced by the operation of the Interpretation Act.

[96] In R. v. Raghubeer, 2006 ONCJ 165, a judge of the Ontario Court of Justice considered s. 34(2) of the Interpretation Act in the context of charges under the CEA. The trial judge found that the accused was not personally liable, but went on to consider party liability, relying on s. 34(2) of the Interpretation Act. The accused argued that because the CEA provided a definition of "group", Parliament intended to oust normal rules of party liability. Instead, one could only be liable if one fell within the definition of "group" under the CEA.

[97] The trial judge rejected this argument. He held that the definition of "group" was intended to expand the types of entities that could be charged under the CEA to include unincorporated associations. This section did not manifest an intention to oust the normal penal theory of party liability. It did not provide otherwise as required by s. 34(2) of the Interpretation Act.

[98] Consistent with these authorities, I am of the view that in order to exclude the application of the Criminal Code by virtue of s. 34(2) of the Interpretation Act, there must either be an statement to that effect in the statute or it must be excluded by necessary implication as a result of a direct conflict between the statutory provision and the Code.

[99] None of the provisions of the CEA relied upon by the appellant meet the threshold of "otherwise providing", either expressly or by necessary implication.

[100] Furthermore, the appellant's reliance on the expressio unius principle is misplaced, in my view. By virtue of the Interpretation Act, all provisions of the Code apply, unless the Act provides otherwise. The inference from not including those provisions is not that Parliament must have intended to exclude them, but, by virtue of the Interpretation Act, that they apply because Parliament would have said otherwise if it did not want them to apply.

[101] I would therefore dismiss the appeal with respect to count three.

(3) The Adverse Inference Issue

[102] I turn to the third issue. As I have noted, the SCAJ found that although the trial judge erred in drawing an adverse inference from the appellant's failure to call McNutt, it was an appropriate case in which to apply the curative proviso.

[103] The appeal comes to this court pursuant to leave to appeal granted under s. 839(1) of the Code. As Doherty J.A. noted in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, at para. 24, it is an appeal from the decision of the SCAJ and not a second appeal from the trial decision. It is also an appeal limited to questions of law alone. In R.(R.), at para. 37, Doherty J.A. summarized the principles applicable to leave to appeal under s. 839:

In summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables - the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.

[104] In this case, the appellant sought leave to appeal his convictions on the basis that the trial judge's errors in the interpretation of the CEA raised arguable questions of law that had significance to the administration of justice beyond the four corners of the case. He did not seek leave to appeal the SCAJ's dismissal of the adverse inference ground of appeal.

[105] In granting leave to appeal to this court, Gillese J.A. noted that the proposed grounds raised by the appellant met the R.(R.) test because they related to the interpretation of the CEA and the application of the Code, that there was little case law on the subject and that the issues were of importance beyond the immediate parties. She also granted the appellant leave to appeal his sentence, noting that the sentence appeal raised the issue of whether a custodial sentence was demonstrably unfit or otherwise unreasonable for such offences. Leave was not granted with respect to the "adverse inference" issue because it was not requested.

[106] As leave to appeal was neither sought nor granted, I would not consider this ground of appeal. I would add that in any event, notwithstanding the acknowledged error in relation to McNutt, I would not interfere with the SCAJ's conclusion that this would be an appropriate case for the application of the curative proviso of the Code.

G. Disposition

[107] For the foregoing reasons, I would dismiss the appeal.

Released: September 13, 2017

"George R. Strathy C.J.O."

"I agree. M. L. Benotto J.A."

"I agree. B.W. Miller J.A."