Court Information

Information No.: 13-2170-01/02

Court: Ontario Court of Justice

Location: Lindsay, Ontario

Date: October 31, 2014

Parties and Counsel

Her Majesty the Queen

• Counsel: T. Lemon
• Counsel: B. Gluckman

v.

Dean Del Mastro

• Counsel: J. Ayotte

and

Richard McCarthy

• Counsel: D. McFadden

Before: The Honourable Justice L. M. Cameron

Heard: In Writing

Reasons for Judgment

Introduction

In the fall of 2008, Dean Del Mastro was the Conservative candidate for the Peterborough riding in the federal general election. Richard McCarthy was his Official Agent.

The Canada Elections Act sets out limits for candidate and campaign election expenses, and sets out reporting requirements with respect to those expenses. It is alleged that Del Mastro personally and his campaign exceeded those limits and filed false or incomplete election expense reports with Elections Canada.

The 2008 candidate spending limit was $2,100. The campaign limit was $92,566. The campaign expenses that were claimed were $91,770, according to the Return filed with Elections Canada in February of 2009. The election period that year was September 7th to October 14th.

The crux of the allegations in this matter revolves around a September 15th $21,000 contract with Holinshed Research Group for election services, in particular, "Voter ID" or identification calling, and "get-out-the-vote" calling, commonly referred to as GOTV calling.

The Crown's Position

The Prosecution contends that there was such a contract and that it was completed, paid for and not declared to Elections Canada.

The Defence Position

The Defence for both Mr. Del Mastro and Mr. McCarthy take the position that the agreement with Holinshed for election services was limited to a $1,575 contract for GOTV calling only, paid for and declared.

Evidence and Exhibits

I heard 15 days of evidence and received a banker's box full of 32 exhibits, including three agreed statements of fact, two volumes of admitted documents and two computer expert reports.

Background

Holinshed had previously done business with Del Mastro and the Peterborough EDA in 2007 when they completed a contract for polling services. Both parties were interested in further work together.

In 2008, including during the election period, and then into 2009, there were discussions, primarily between Frank Hall, president of Holinshed, and Del Mastro about other projects, in particular, the creation of customized GeoVote, Vote Tracker and Strategabase software programs for the Peterborough EDA and the MP's constituency office.

These projects were never completed, and the relationship between Holinshed and Del Mastro and the Peterborough EDA was ended by Del Mastro in August of 2009.

There was a contract in existence between the parties at that time. It was created in June 2009, but dated April 2009. It was one of many versions of an agreement for non-election services.

It is the Crown's position that the proposed non-election services were separate from the election services actually provided as set out in the September 15th, 2008, quote document signed by the Campaign Manager, John McNutt, and endorsed for payment by McCarthy.

The September 15th quote on its face is clearly for election-related services.

The Crown's position is further that once it was known that the $21,000 contract would put them over the spending limit, efforts were made by Del Mastro and McCarthy to conceal that fact, including a false Election Return.

It is the Defence position that the September 15th document did not reflect the discussions and agreement between Del Mastro and Hall/Holinshed, and was signed in error by McNutt who lacked the authority to sign in any event, and was mistakenly endorsed by McCarthy who subsequently made efforts to correct that mistake.

The Defence position as well is that aside from the $1,575 GOTV contract, all other work to be done by Holinshed was not election-related.

Legal Issue: Definition of Election Expense

The Defence takes the position that in proving excessive election spending the Crown is required to prove that the expense was, in the language of the Canada Elections Act section 407(1), "used to directly promote or oppose a registered party, its leader or a candidate during an election period".

The Defence says that the Crown has not done that because even if it is accepted that Holinshed actually did work on behalf of the Del Mastro campaign, there is no proof that the work was actually used to directly promote Del Mastro.

McCarthy further takes the position that especially in light of the absence of any explicit standard of conduct for an Official Agent, his behaviour was proper and at least would meet a due diligence threshold.

A necessary corollary of both the Del Mastro and McCarthy positions is that Frank Hall was lying to the court and the investigators about the nature of the work to be done during the election period, and that he changed or falsified documents and electronic data, such as e-mails and attachments, to create a false record that would accord with his evidence.

Court's Analysis of Section 407

I heard extensive submissions on this issue, and I carefully reviewed those submissions, the relevant portions of the Act, and I reread the case law provided, both the original judicial review application in the Callaghan case as well as the Federal Court of Appeal decision, both from 2011, and also Libman and Harper from the Supreme Court of Canada, both 1997 cases.

The CEA 407(1) section is a non-exhaustive description of an election expense. It indicates that an election expense includes any cost or non-monetary contribution to the extent that it is used to directly promote a candidate during an election period.

CEA 407(2) is a subsection dealing with "exclusions" and CEA 407(3), which is labelled "inclusions", deals with a number of items that are deemed to be included in the definition of election expense and include a cost or non-monetary contribution. Five items are listed, including subsection (e); election surveys or other surveys or research during an election period.

The formula for attaching a cost, that is a dollar cost, to non-monetary contributions is the commercial value formula. To that extent commercial value must be considered as part of the definition of a non-monetary contribution. CEA section 2 has a definition of non-monetary contribution and commercial value. In referring to those definitions and paragraph 17 in Callaghan, it is my view that commercial value is not a concept that applies to expenses in general terms.

In my view, 407(3) is the complete answer to the argument made on behalf of the Defence.

The services described in the September 21st, 2008, invoice for $21,000, that is, for Voter ID and GOTV calling during the election period, fall within 407(3)(e).

In my view, the statute is clear. 407(3) applies, thus an analysis of facts in the context of 407(1) is unnecessary.

Even if I were to make that analysis, I would conclude in this case that Voter ID and GOTV calling services performed during the election period are election expenses within 407(1). In this case these were activities focused on supporting the re-election of Mr. Del Mastro that easily fall within the notion of directly promoting a candidate.

As a result of my determination with respect to this legal issue, I will not be referring to the evidence of the Defence witnesses Ellis, Parrin, Horrigan, Humphries or Berry.

Electronic Data Evidence

A significant portion of the Crown's case relies on electronic documentary evidence, both as evidence itself, but also as evidence not offered for its truth but to corroborate the testimony of Frank Hall. There is no doubt that any form of documentary evidence aside, Frank Hall would say that he had a $21,000 contract with Del Mastro and his campaign for election-related calling services.

I have previously given a ruling with respect to the admissibility of this evidence and its possible shortcomings. I will deal with this issue further at this stage as it has an important bearing on the evidence of key witnesses. Del Mastro takes the position that the e-data is unreliable evidence and ought to be given little or no weight.

Frank Hall first approached Elections Canada about the Del Mastro 2008 election return in April 2011. He was still using the laptop computer that he had used throughout his dealings with Del Mastro, his campaign and the Peterborough EDA in 2007, 2008 and 2009. A search of that laptop was conducted in October 2012, restricted to incoming and outgoing e-mails and attachments sent or received between January the 1st, 2007, and September 30th, 2009, to, from or cc'd to certain people involved in the interactions between Holinshed and Del Mastro and McCarthy. The search agreement is Exhibit 8.

I heard expert evidence from both Crown and Defence witnesses about the search process and results. There is no issue with respect to the integrity of the search process, nor any issue with respect to the credibility or expertise of the two expert witnesses.

The search of the laptop was not a full forensic image, that is, a complete copy of the whole of the laptop. It was restricted to certain areas of the stored data that were believed to contain data relevant to the investigation. Hall testified about the reasons why he wanted the search restricted in this way, including personal and client privacy and advice from his lawyer. In my view, Hall's position was reasonable and does not itself raise any suspicion about the legitimacy of his concern about Del Mastro's election return.

The fact that the analyst did not have a full forensic image meant that some metadata about the electronic data in question would not be available to them. In terms of this case, that has restricted their ability to completely rule out certain theoretical possibilities. However, in light of what metadata was available for analysis and the uncontradicted knowledge, skills and ability of the lay user, Frank Hall, I don't believe that the lack of a full forensic image would reasonably preclude me from relying on the electronic data for the various purposes offered. There is certainly no evidence of tampering with the e-data.

Given that both expert witnesses testified that they would need considerable time, research and software programs not commonly available to be able to move or change the e-data leaving no trace in the way suggested by the Defence, there seems to be no air of reality to the suggestion that that has happened.

I accept the electronic data. The data is of course only one of many elements of the case as a whole to be considered. It does not stand alone as proof of the allegations, nor is it awarded any special evidentiary status. Despite the reams of it before me, it is largely corroboration of the evidence offered by human witnesses through their testimony or agreed statement of fact.

Gaps in the Crown's Case

The Defence also raised e-data as an issue that should cause the court concern in another way; that is, the lack of it. There was no search or analysis of the computer system as a whole at Holinshed or its offsite data storage facilities. Similarly, the Holinshed phone records for the fall of 2008 did not form part of the Crown's case, although one could reasonably infer that they could be strongly corroborative evidence.

Although troublesome, these gaps in evidence, in my view, remain simply that. There is no Charter application before the court with respect to the investigation itself. There is an explanation before the court with respect to that evidence, more accurately its absence, that may not reflect well on the quality of the investigation or the decisions made at the time, but is otherwise not unreasonable. Although the absent evidence has to do with Frank Hall, the absence does not provide a basis upon which to draw an adverse inference against his credibility.

Credibility Analysis: Dean Del Mastro

Mr. Del Mastro testified over three days. With respect to the heart of the allegations, he testified that he had an agreement with Frank Hall/Holinshed, as of June or July 2008 for non-election services, that is GeoVote. Although offered, he declined any Voter ID services.

Del Mastro testified that he had given the go-ahead for work on GeoVote to start, and on August the 18th, 2008, he wrote a $21,000 personal cheque to Holinshed because the work would not start until Holinshed got paid. Del Mastro testified that the mid-September contract for Voter ID and GOTV was, essentially, a mystery - for services never requested nor needed, signed by the Campaign Manager McNutt in error and endorsed for payment by the Official Agent McCarthy in error.

Del Mastro stated that the campaign was never in danger of going over its financial limit. The only agreement for election services was made during the election period for partial GOTV calling services. This agreement is reflected in the $1,575 invoice created and sent in 2008.

Del Mastro further testified that the numerous contracts and invoices drafted by Frank Hall over the fall of 2008 were filled with errors and did not reflect the discussions between himself and Hall about GeoVote or other services to be provided. Various iterations and versions of the contracts are fairly set out in the written timeline provided by the Crown in final submissions, which is now Exhibit 33.

These contract discussions, Mr. Del Mastro testified, continued into 2009 with more versions of proposed contracts and one version actually signed for services to the constituency office. In August 2009 Del Mastro cancelled that contract and severed relations with Holinshed. While confirming, or at least not denying, most of the e-mails between himself and Hall over many months, Del Mastro denied sending or receiving e-mails in the fall of 2008 about Voter ID and GOTV services or the September 15th contract.

While I accept some of Del Mastro evidence, I have concerns about the credibility of his evidence, specifically its veracity on contested issues revolving around Holinshed's provision of election services in the fall of 2008. There are a number of inconsistencies and improbabilities. At times, the way in which he testified led me to believe that he was avoiding the truth.

With respect to the latter, on a number of occasions Del Mastro did not answer the questions put to him in cross-examination. He frequently obfuscated the evidence. Here are references to several examples:

• A question about other services in the amount of $1,575 [found in the transcript of July 10th at page 55]
• A question about providing outdated CIMS information for GOTV calling [found in the transcript of July 11th at page 14]
• A question about meeting minutes indicating that McNutt had complete spending authority subject to approval by McCarthy and overspending during the early part of the campaign [July 11th, page 51 to 52]
• Questions about payment of an invoice directed to Jeff Westlake [July 11th, page 47 to 48]
• A question about McNutt's authority to incur election expenses [July 11th, page 44]
• A question about when the $21,000 personal cheque was sent to Holinshed [July 11th, page 126 to 127]

In no particular order, I refer to some of the other areas of Del Mastro's testimony that caused me concern, being internally inconsistent or making no common sense.

The $21,000 Personal Cheque

Del Mastro claimed that this deposit was for non-election services eventually described in the $14,000 and $7,000 contracts split between the EDA and MP offices, except that it was no deposit; it was the total cost of those contracts. Also, there is no trace of any discussion about splitting the costs until November when it shows up in a string of e-mails about the Voter ID and GOTV contract getting rolled into a larger contract that included Strategabase.

The compelling commonsense interpretation of those e-mails is that Del Mastro did not know about splitting the cost until then and wanted to talk about it further. Parenthetically, that e-mail also makes it clear that the non-election finished product could not be completed or delivered without Del Mastro's staff working with Holinshed to populate the software program and define its parameters as testified to by Hall.

In explaining the relevant activity in his personal bank account, Del Mastro talked about his personal cheque as just an "expression of trust", apparently not expecting it to be cashed in August when he wrote it, but he knew better than that; as he later acknowledged in his evidence, payment was required in order for the work to start. One wonders why neither the campaign nor McCarthy knew about Del Mastro's $21,000 cheque, supposedly written on their behalf, a month later when they were paying a $21,000 invoice to the same company.

Del Mastro later talked about the cheque in terms of establishing credit with Holinshed with respect to non-election services, yet he used it to pay for GOTV election services. Considering the known importance of tracking election expenses, I find it improbable that more care would not have been taken to separate the election and non-election expenses.

Granted, Del Mastro often spoke and acted about himself and the EDA as if they were one, despite knowing he had no authority to bind the association. This begs the question of what the EDA and subsequently the campaign cabinet knew about what was going on.

Del Mastro testified McCarthy was constantly on top of campaign expenses and that the campaign cabinet discussed major decisions like budget before they were implemented; but if that were the case, it is highly unlikely that both McNutt and McCarthy would make the mistake of paying an erroneous $21,000 invoice for election services during the writ period.

The $1,575 Invoice for GOTV

Del Mastro claims that this reflects the only accurate agreement with Holinshed for election services and that it was discussed by the campaign cabinet. Del Mastro testified that this agreement was reached in September, that "it was always clear", and that he was certain that there was an understanding between himself, the cabinet and Holinshed about this contract.

It is clear to me from many days of testimony of both Hall and Del Mastro that they are both competent communicators. There is no reason to believe that this simple arrangement would be misunderstood. Indeed, the $1,575 contract is a short simple contract for a prescribed portion of GOTV calling, presumably easily generated. But there is no quote or invoice created during the writ for this very simple agreement, not generated until December, and no trace of any discussion about this limited service prior to December. This seems highly unlikely.

McCarthy apparently did not know about this election expense, despite Del Mastro testifying that the contract was discussed by the campaign cabinet. Del Mastro's claim that a bill for GOTV would not necessarily mean anything to his Official Agent McCarthy, who was "not a campaign man" is incredible.

McNutt and the Erroneous $21,000 Contract

Del Mastro testified that McNutt had mistakenly signed this plainly worded election services contract, further, that he had tasked McNutt, the Campaign Manager, in the midst of a campaign, and "not a computer guy", to follow up with Holinshed about an EDA contract for non-election computer database services, having said that the GeoVote software was not a priority during the election.

McNutt was told to cancel the contract because it was all wrong. But McNutt does not cancel the contract, nor does McCarthy, who simply advises Holinshed that the wrong account was used for payment and that only a portion of the contract was for election services. According to Del Mastro's evidence, he, Del Mastro, is apparently the only one from his campaign cabinet or Holinshed that understood that the $21,000 contract for election services was fundamentally incorrect.

The GOTV Calling Data

Del Mastro's evidence on this issue was that his campaign, which was doing all the Voter ID calling, provided calling lists and information to Holinshed for the GOTV calls only once, on September 15th, more than three weeks before the election. This makes no sense and runs contrary to Del Mastro's own evidence about the process and importance of timely and coordinated Voter ID and GOTV calling.

Adverse Inference Based on Witnesses Not Called

Also with respect to Mr. Del Mastro's credibility is the issue of an adverse inference based on witnesses not called. A trier of fact must assess the case on the evidence before the court. It is not for a judge to speculate or improperly fill in the blanks.

There is, generally, no obligation upon the Defence to call a witness, including the accused. A missing witness or evidence in the Crown's case is usually reflected in falling short of the necessary proof beyond a reasonable doubt, absent an abuse-of-process or Charter application. However, in some circumstances it makes sense and is legally permissible to draw an adverse inference based on the lack of evidence.

The Crown has asked me to do so in this case.

NLP, a 2013 decision of the Ontario Court of Appeal, (OJ 5878) is a leading case in this area of law.

If there are grounds for drawing an adverse inference from the failure to offer evidence to the court, then the adverse inference is limited to the assessment of the party's credibility. The adverse inference does not provide proof of the offence, nor could it reverse the onus of proving the case.

Having reviewed the law and the evidence, I am prepared to draw an adverse inference with respect to Del Mastro's credibility.

According to Del Mastro's own evidence, there are three people in a position to provide information to the court on important issues, indeed to give information favourable to the Defence and/or corroborative of Del Mastro's evidence. They would be in a position to displace commonsense inferences or conclusions about the nature of the Holinshed contract available on the evidence. Those people are Doug Del Mastro, Bruce Fitzpatrick, and John McNutt. These witnesses were not called as part of the Defence evidence offered by Del Mastro.

Doug Del Mastro was the so-called CIMS wizard, a characterization endorsed by other Defence witnesses as well as Del Mastro. Doug Del Mastro was in charge of that database, its use by the campaign, and its use by Holinshed. He was an important part of the interaction between Holinshed and the Del Mastro campaign in the fall of 2008 with respect to material issues before this court.

Bruce Fitzpatrick, according to Del Mastro, was responsible for the voter-calling part of the campaign, including the arrangements with Holinshed for partial GOTV calling. He obviously would have been in a position to offer evidence directly on controversial issues at trial including the $1,575 contract.

And John McNutt. I did pause in considering Mr. McNutt's absence because "by agreement" McNutt was not testifying at trial. I considered, therefore, that I should exclude him from consideration on this issue. However, during final submissions it was made clear by the Defence for both parties that the agreement not to call McNutt did not extend to missing evidence.

John McNutt was the Campaign Manager. According to the evidence, including admitted documents and Del Mastro's testimony, McNutt would have key evidence to give with respect to the September 15th Voter ID and GOTV contract and the circumstances surrounding it, also with respect to numerous e-mails with Hall and others at Holinshed about the Voter ID calling and what Del Mastro had asked McNutt to do by getting in touch with Holinshed in the first place.

Given the adverse inference and the other concerns already articulated, I am led to reject Mr. Del Mastro's evidence on key issues.

Credibility Analysis: Frank Hall

I heard from Mr. Hall over six days. Much of his testimony necessarily moved slowly due to the introduction of volumes of documentary evidence.

He was the president of Holinshed, a data research company, specializing in some areas including elections. His company was in operation from 2002 to 2011.

Frank Hall's main role in the company was taking care of the client side of business. His brother, Colin, also had a senior role. He was in charge of data, being a statistician, senior researcher and programmer. There were other senior staff members at Holinshed, including those in HR, Human Resources, and data analysis.

During the 2008 federal election Holinshed was providing election services for about a dozen candidates. One of those services already referred to is Voter ID calling, voter identification calling. It is meant to identify in a timely way those people who are supporting a particular candidate. Usually it is paired with GOTV, or get-out-the-vote, calling on election day meant to capitalize on the identified votes by encouraging those people to get out and actually vote.

The specifics of each Voter ID and GOTV contract would be discussed and agreed upon by Holinshed and the candidate or campaign.

The specialized campaign services were quite different than the polling work done for Del Mastro in 2007 and different from the GeoVote and Vote Tracker software that Hall hoped to sell to Del Mastro. There were discussions but no purchase of this in the summer of 2008.

Around that time Hall also offered election services to Del Mastro in anticipation of the Fall election, but Del Mastro declined, explaining that it wouldn't be needed.

Hall testified that in mid-September after the election had been called, he received an urgent call from Del Mastro asking for election services after all. Hall recalled being told that assistance from the Conservative Party was unexpectedly not available to Del Mastro.

Hall stated that they revisited the summertime quotes for election services, and Del Mastro agreed to a $21,000 contract for Voter ID and GOTV calling. This quote was sent to Campaign Manager McNutt at Del Mastro's request. McNutt signed the contract, and it was subsequently endorsed for payment by McCarthy.

Hall went on to explain that CIMS lists were immediately sent off to Holinshed, and work commenced on calling for the Del Mastro campaign focusing on priority polling areas as identified by McNutt. Hall was very clear in his testimony that all his contact at this time with Del Mastro, McCarthy, McNutt and others, including his own colleagues, was all about the election. Much of the contact is reflected in his e-mail exchanges with those people, and that is part of the evidence before me.

Hall said it was about two weeks after getting started that he had to stop work on the Del Mastro campaign contract because he had not received payment in full. He went on to say that the campaign had paid only $10,000, the first of two instalments. It was Hall's evidence that at the time that calling was halted, he spoke with McCarthy who told him that the campaign was way over its spending limit.

The calling was roughly at the half-way point of the $21,000 contract. McCarthy told Hall that the campaign cabinet would meet to discuss the problem, but that he, McCarthy, expected that they would go no further with the calling. Subsequent to that, Hall e-mailed and spoke with Del Mastro who advised that he would pay in full personally. The calling recommenced and continued to election day. Del Mastro's $21,000 cheque was received and cashed around October 10th.

Hall testified that he had numerous exchanges by phone and e-mail with Del Mastro and McNutt about the election services being provided. These are fairly set out in the timeline, which is Exhibit 33. Hall testified that he also had requests for changes in the contracts or quotes starting at the time he was told the campaign had gone over its limit, essentially to work around campaign costs and the writ period. There was also a request for a quote on GeoVote in addition to the services already being provided.

Hall responded to all these requests as is reflected in the many variations of the quotes and contracts in evidence before me. Hall was clear that aside from GeoVote and Vote Tracker, the various versions of the contracts were all about the same thing - election services.

Hall acknowledged being rather laissez-faire about the language and dates in the written versions of the contracts, to the point of them sometimes being inaccurate but not illegal. He changed things around at Del Mastro's request on the basis that he wanted to keep the client happy and ensure repeat business, believing that it was the timing of the work that dictated whether or not it was an election expense, rather than what the contract said.

Hall testified that after the election Holinshed continued to work on GeoVote for Del Mastro, although progress was delayed, awaiting an opportunity to work together on the program with Del Mastro and/or the EDA staff and receive their input about custom specifications for the software. Despite continued efforts to move the project ahead, Hall said that nothing happened, and eventually the relationship unravelled, ending abruptly in August of 2009.

While I do not agree with the Defence position that Hall is completely unworthy of belief, I do have reservations about his evidence, in particular, his willingness to fudge the contracts between Holinshed and Del Mastro and/or the campaign. On his own evidence Hall was essentially turning a blind eye to the machinations of Del Mastro, McCarthy and McNutt to avoid his fees being labelled election expenses. In my view, the inaccuracies went beyond what could be justified as being inconsequential or "not his business", not to mention being poor business practice.

Defence Concerns Regarding Hall's Evidence

The Defence raised a number of concerns with respect to Hall's evidence that I will address briefly at this time.

I have already spoken about the limited computer search parameters, and they do not, in my view, raise a suspicion about credibility; neither does the delay in reporting the matter to Elections Canada, which Hall explained in a reasonable way. Any animosity Hall felt towards Del Mastro over their business dealings may or may not have been a motive to fabricate these allegations, but, in my view, there is no necessary nor compelling link between the two. The fact that Hall was contradicted in his evidence about who twigged him to Del Mastro's election return is perhaps a reflection on his memory but on a collateral point; similarly, Hall's recollection that it was the fact of not being supported by the Conservative Party's Blue Program that prompted the request for Holinshed's Voter ID and GOTV services. Hall's administrative practices, in particular the naming and numbering of quotes and invoices, certainly suggests hasty or sloppy work, but those shortcomings, in my view, relate more to the reliability of the documentation as opposed to demonstrations of necessarily fraudulent behaviour. I would not characterize Hall's evidence as evasive, although it was at times cautious and careful.

I have also considered whether the accumulation of these various issues or concerns might raise my suspicions about Hall's credibility, and I would say that they have introduced some hesitation about his evidence. However, what little pause they may give me is overcome by the ample corroboration of his evidence with respect to the heart of the allegations, and my rejection of the notion that Hall schemed to falsely complain about Del Mastro's election expenses which would necessarily include the cooperation of several other individuals and the fraudulent creation or manipulation of many e-mails, electronic documents, spreadsheets, employee pay records and metadata.

Significant portions of Hall's testimony are corroborated by the evidence of David Pennylegion, Colin Hall, and the agreed statements of facts and documents. It is clear from that evidence that Holinshed was doing work for the Del Mastro campaign during the writ period, specifically Voter ID calling and eventually GOTV calling on election day. This is reflected in the timing and content of numerous e-mails sent and received amongst Colin Hall, Pennylegion and McNutt.

Needless to say, there are as well numerous incoming and outgoing e-mails, quotes and invoices that corroborate Frank Hall's evidence.

For the reasons just articulated, I accept the evidence of Frank Hall.

Conclusions

Criminal trials are not credibility contests. Having determined what evidence is accepted, it is necessary for me to consider whether the Crown has proved its case beyond a reasonable doubt.

The allegations here are that Del Mastro as principle and McCarthy as party contravened the Elections Act by incurring election expenses over the campaign limit, that Del Mastro exceeded his personal contribution limit by paying a $21,000 election expense, that McCarthy as principle and Del Mastro as party filed a false election return, or alternatively that McCarthy and Del Mastro filed an incomplete return, this last matter being a strict liability offence.

The legal theories of liability are not contested.

Findings of Fact

Del Mastro was a candidate for the 2008 federal general election. McCarthy was the campaign's Official Agent.

Following the commencement of the election period, Del Mastro wanted Holinshed's help on the 2008 election campaign. Based on Del Mastro's communication with Frank Hall on September 14th, 2008, Hall provided the Voter ID and GOTV quote dated September 14th for $21,000, and it was provided on September 14th. This quote was addressed to Dean Del Mastro, MP, and the Federal Conservative Campaign, and was for one amount for all services, that is, Voter ID and GOTV. It was signed on the 15th by Campaign Manager John McNutt and subsequently endorsed by McCarthy for payment in full.

McCarthy wrote two cheques dated September 18th and September 29th to make the payment. In my view, in light of the timing of this contract and its language, it is plainly a contract for election services and was intended to be so by Holinshed, Del Mastro and the campaign.

CIMS data was provided to Holinshed on September 15th to allow work to start on the contract. Work did start on the contract. Voter ID calls began right away, and frequent updates every two to three days were provided to Del Mastro's campaign, primarily through McNutt. Some updates were provided to Del Mastro directly. The September 21st exchange between Del Mastro and Hall lays bare Del Mastro's knowledge about the Voter ID calling for the campaign.

At least Del Mastro and McCarthy of the campaign cabinet became aware of the fact that the Holinshed contract would put them over the election spending limits. I infer that McNutt was aware of this as well, given his position as Campaign Manager and his interaction with Del Mastro and McCarthy.

The information reflected in McNutt's e-mail of November the 25th to Hall is indirect corroboration of this and the fact that it was known that the campaign had been charged $20,000 for election services. Efforts were made to retract the payments from the campaign account and re-jig the contract to deflect some of the expense away from the election. This started with a request for a $5,000 invoice. There is no doubt that Holinshed's work took place during the writ period and is an election expense under either 407(1) or (3) of the Canada Elections Act whatever various numbers of the campaign cabinet may have wanted to call it.

Holinshed halted the Voter ID calling on October 2nd because they had not received payment in full. Hall was made aware of problems with overspending by McCarthy and was willing to help the campaign by re-working the contract dates and descriptions, understanding their concern about exceeding their spending limits. This is quite plainly reflected in numerous e-mails involving Hall. Del Mastro promised full payment of the $21,000 contract and calling resumed. At that point Del Mastro made the payment of $21,000 from his personal account.

I have not heard from Mr. McCarthy, nor was he under any obligation to testify. It is for the Crown to prove the case against him. I have, however, considered the evidence before me, informed by McCarthy's position on this matter as set out in his November 4th, 2008, letter to Hall. The letter is an admitted document.

That position, in my view, is not satisfactory. McCarthy was an accountant and was provided with training and resources in order to do his job as an Official Agent. It is incredible that he, the careful Financial Agent and campaign Official Agent, would not realize at the time that he could not make a payment from the campaign account for an annual contract, especially when only a very small portion of it supposedly related to election services; not to mention the fact that there was no annual contract at the time the cheques were written, and the quote upon which he endorsed payment could not possibly be read that way.

Based on the evidence before the court, I find that McCarthy was aware at least through McNutt that Holinshed was doing Voter ID work during the campaign, and this was connected to the $21,000 contract. As previously mentioned, the Voter ID calling falls clearly within the 407(3) definition of election expense if not 407(1).

While there are no explicit standards of conduct for an Official Agent, being an Official Agent is no casual thing. It is a statutory designation and responsibility, and it is all about the election. It is the Official Agent's responsibility to track all election expenses, which obviously entails understanding what they are for. Awareness of the legislation governing election expenses is a given.

Without shifting the onus of proof, I note that it is not helpful to McCarthy that the evidence does not show what would be reasonably expected in the circumstances as set out in his own letter, that is, contemporaneous notes or inquiries about the supposedly cancelled contract and a huge, almost $21,000, mistake running through the campaign account.

What follows the election, as far as election expenses and Holinshed are concerned, is the continued discussion about the GeoVote/Vote Tracker contract, overlaid with Del Mastro's continuing efforts to absorb some of the election expense of the Holinshed Voter ID and GOTV work into other contracts. This eventually produced the $1,575 invoice for partial GOTV calling, which I find to be only part of the election expenses incurred by the campaign, and in practical terms, a misleading statement of election expenses.

The 2009 continuing saga of Holinshed, Del Mastro and the Peterborough EDA is irrelevant, in my view, to the determination of the essential issues before me, save for its reflection on credibility of witnesses.

What would be obvious from my findings of fact, but I will state specifically, is that the Defence evidence does not raise a reasonable doubt about the allegations. Further, the evidence I accept does prove the case beyond a reasonable doubt.

Verdict

I find that Del Mastro is guilty of count one, incurring election expenses that exceeded the campaign limit, and that McCarthy is also guilty of this offence as a party based, at least, on wilful blindness.

I find further that Del Mastro is guilty of count two, making a personal contribution that exceeded the limit.

And I find that McCarthy is guilty of count three and Del Mastro as a party for providing a false or misleading Election Return, and necessarily make the same finding on count four, the alternate strict liability offence.

The Kienapple principle is applied to count four.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Diane Cavana, certify that this document is a true and accurate transcript of the recording of

R. v. DEAN DEL MASTRO and RICHARD MCCARTHY

in the Ontario Court of Justice held at 440 Kent Street West, Lindsay, Ontario, taken from Recording 4311_03_20141031_085826__6_CAMEROL.dcr, which has been certified in Form 1.

Diane Cavana

C.R.A.O. Certified Court Reporter

Authorized Court Transcriptionist

Transcript Ordered: November 4, 2014

Transcript Completed: November 10, 2014

Released by Justice: November 17, 2014

Ordering Party Notified: November 17, 2014