R. v. Del Mastro, 2016 ONSC 2071

CITATION: R. v. Del Mastro, 2016 ONSC 2071

PETERBOROUGH COURT FILE NO.:13-2170

DATE: 2016-04-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DEAN DEL MASTRO

Appellant

C. Michaelson, Q.C., and B. Gluckman, for the Respondent (Crown)

Leo Adler, for the Appellant

SHAUGHNESSY J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] This is an appeal by Dean Del Mastro from his conviction and sentence imposed by Justice Lisa M. Cameron of the Ontario Court of Justice. The Crown brings a cross-appeal on the sentence imposed.

[2] Dean Del Mastro, after a trial of 17 days was convicted of offences under the Canada Elections Act SC 2000, c.9 namely:

(i) Exceeding the election expenses limit (Count #1);

(ii) Wilfully exceeding his personal contribution limit (Count #2);

(iii) Filing a false or misleading electoral campaign return (Count #3);

(iv) Filing an electoral campaign return that did not set out required information. This offence was stayed under the principles in Kineapple v. R. 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[3] The trial judge imposed a sentence on Dean Del Mastro as follows:

(a) Count #1 - a 30 day sentence of imprisonment followed by 18 months’ probation with conditions. The trial judge refused the defense request for an intermittent sentence (Friday to Monday);

(b) Count #2 - one month imprisonment and 18 months’ probation concurrent to Count #1;

(c) Count #3 - four months conditional sentence consecutive to the sentence of imprisonment under Count #1 followed by 12 months of probation with terms concurrent to the probation under Count #1;

(d) A restitution order that Dean Del Mastro pay $10,000 to the Electoral District Association.

Overview

[4] The appellant, Dean Del Mastro, was the incumbent Member of Parliament for the federal riding of Peterborough when the campaign for the 2008 federal election began. The election Writ period was from September 7, 2008 to Election Day, October 14, 2008.

[5] The Crown allegations and the appellant’s factum (para. 2 and footnote 2) in relation to the counts on the Information are that shortly after the election campaign started, Dean Del Mastro hired a company, Holinshed Research Group (Holinshed), to provide him with “electoral services” during the campaign. The electoral services provided were Voter ID or “identification calling” and “get-out-the-vote” or GOTV calling. In short, Holinshed was to provide Dean Del Mastro with calling services that were aimed at identifying potential supporters and getting them out to vote on Election Day. The principal of Holinshed was a Mr. Frank Hall, who testified at length as the main Crown witness at trial.

[6] The Crown’s evidence was that Dean Del Mastro paid Holinshed $21,000, as detailed in a written contract, for the telephone electoral services, and in so doing exceeded the election expense limit of $92,566 (Count #1). The Crown’s evidence was also that Dean Del Mastro, by giving a cheque to Holinshed, drawn on his own personal bank account in the amount of $21,000, breached the personal amount limit ($2,100) that he was entitled to contribute to his own campaign (Count #2). The Crown’s evidence was that Dean Del Mastro subsequently obtained an invoice from Holinshed indicating that the services provided to his campaign by Holinshed had cost only $1,575. This amount, which the trial judge found was false and misleading, was included in Dean Del Mastro’s campaign return filed with Elections Canada (Count #3).

[7] Dean Del Mastro was charged and convicted as a party under s. 21 of the Criminal Code in relation to Count #3. Under the Canada Elections Act, the official agent, Mr. Richard McCarthy, had the responsibility of completing and filing the electoral campaign return. Both Mr. McCarthy and Dean Del Mastro signed the declaration on the return, verifying its truth and accuracy and both were convicted on Count #3. Mr. McCarthy did not appeal his conviction or sentence.

[8] The Crown’s evidence at trial consisted of a significant number of Agreed Statements of Facts, electronic records that had been obtained by investigators, and the oral testimony of Frank Hall (the President of Holinshed at the relevant time), David Pennylegion (a former employee of Holinshed) and Cpl. David Connors, a member of the RCMP who was qualified by the trial judge as an expert in the recovery, examination and interpretation of computer data. The Agreed Statement of Facts, #1-3 filed as exhibits, contains a great deal of summary of testimony of persons who would otherwise be called as witnesses at trial. The only witness who testified as an investigator of Elections Canada was Mr. Al Mathews. However, by way of illustrating the extensive use of the Agreed Statement of Facts, the evidence of Mr. Howard Saunders, an auditor of the Political Financing and Audit Division of Elections Canada, including his relevant files were admitted as Agreed Statements of Fact #2 (see Exhibit #19 and #20).

[9] Dean Del Mastro testified at trial, as well as Mr. Kevin Lo (who was qualified as an expert in the recovery, examination and the interpretation of computer data) on behalf of the defence. The defence called a number of other witnesses, namely Brent Perrin, Susan Horrigan, Gary Humphreys, Douglas Berry and Alan Wilson. The trial judge made no reference to the testimony of these witnesses for reasons which will be reviewed in these Reasons.

The Grounds of Appeal on Conviction

[10] On the appeal from conviction, the appellant alleges that the following were material errors in the reasons of the trial judge:

(a) Commercial Value Argument

Assuming that the evidence of Frank Hall of Holinshed was accepted that a contract was entered into between Holinshed and Dean Del Mastro for $21,000, there was no determination at trial of:

(i) how much of the telephone work was actually done and how much of the money that Holinshed received was actually earned by Holinshed during the election campaign and thereafter; and

(ii) what was the actual value of any proven telephone work, regardless of what the contracts or invoices claimed.

(b) Credibility

The trial judge subjected the evidence of Frank Hall and Dean Del Mastro to differing credibility tests and standards. Further, the trial judge drew adverse inferences from witnesses not called by the defence, including a witness John McNutt, who the parties agreed would not be called as a witness and whose evidence formed part of the Agreed Statements of Facts.

(c) R v. W.(D)

The trial judge failed to mention or apply the principles in R. v. W.(D).

(d) Electronic Evidence

The trial judge erred in deciding that she could rely upon Frank Hall’s electronic records for corroboration purposes.

(e) Reasonable Doubt and Party to an Offence

It is submitted that the offences were not proven beyond a reasonable doubt and that the Appellant, at law, cannot be a party to an offence in relation to Count #3.

Position of the Respondent

[11] The Respondent’s position is that the trial judge did not err, and:

(a) was correct in her reasons that the “commercial value” of the services received was irrelevant to the determination whether Del Mastro had exceeded his election expense limit. What mattered is that under the Canada Elections Act, Dean Del Mastro incurred the cost of $21,000 for the Holinshed services;

(b) was correct in her reasons that Del Mastro’s payment of $21,000 from his personal bank account was a contribution to his campaign;

(c) she did not err in assessing the evidence of Dean Del Mastro and Frank Hall. The evidence of electronic records was properly admitted and the trial judge was entitled to rely upon them as evidence corroborating Frank Hall. The trial judge did not subject the evidence of Del Mastro and Hall to different standards of scrutiny. The trial judge rejected the evidence of Dean Del Mastro for reasons stated and she was permitted to draw an adverse inference against Dean Del Mastro with respect to his credibility because of his failure to call witnesses who had material evidence to give on issues that were central to his defence;

(d) the trial judge in effect considered the principles in R. v. W.(D) in concluding that the Crown had proven the case beyond a reasonable doubt;

(f) the trial judge was correct in holding that Dean Del Mastro was liable for the offence in relation to the filing of the false and misleading campaign return. It is submitted that the party liability provisions in s. 21(1) of the Criminal Code apply to summary conviction proceedings under the Canada Elections Act.

Overview of the Evidence at Trial

[12] It is necessary to provide an overview of the evidence at trial to provide context to the issues raised on this appeal. In providing this overview, there is no intention to detail all the evidence, as the trial judge provided a very detailed review of the evidence that she weighed and considered in coming to the verdict.

[13] Dean Del Mastro had some past dealings with Holinshed and its president Frank Hall. It was the testimony of Frank Hall that, in June 2008, Del Mastro asked him to provide a quote for a package for “voter identification” and a “get-out-the-vote” (GOTV) telephone campaign for the anticipated 2008 election. A “voter identification” telephone campaign involves contacting potential voters in an effort to determine which voters are likely to support the candidate; a GOTV campaign involves contacting identified voters on Election Day to encourage them to vote and determine whether in fact they have done so. In the summer of 2008, Del Mastro and Hall also had some general discussions about Hall developing future software called “GeoVote.” However, as stated, this was a future proposed design that had not been developed as of the summer and fall of 2008.

[14] Hall testified that, in response to Del Mastro’s request in June 2008, he prepared a quote for the existing package for “voter identification” as well as the GOTV telephone campaign on Election Day. The quote was sent to Del Mastro. The quote for the requested services was in the amount of $21,600 exclusive of GST.

[15] Hall testified that in July 2008, Del Mastro told him that he (Del Mastro) had qualified for the Conservative Party “Blue Plan”, in which voter identification and the GOTV campaigns would be run out of party headquarters in Ottawa. Accordingly, Del Mastro would not need Holinshed services.

[16] The Writ for the 2008 election issued on September 7, 2008 and Election Day was set for October 14, 2008.

September 14, 2008

[17] Entered into evidence was an e-mail sent by Dean Del Mastro to Frank Hall on September 14, 2008. The text was “Hi Frank Its urgent that you call me as soon as you can.” Del Mastro gives his phone number in the text. The 2008 election campaign was now underway.

[18] Hall testifies that he called Del Mastro. Del Mastro asked Hall if Holinshed could provide voter identification and GOTV services for his campaign. Del Mastro explained that he had not been included in the Conservative Party “Blue Plan” and he had been “left hanging.”

[19] Hall testified that he sent to Del Mastro, the same day (September 14), a quote in the amount of $21,000 (inclusive of GST) for the voter identification and GOTV campaign telephone services. The response and quote are exhibits at trial.

[20] On September 14, 2008, Del Mastro sends an e-mail to Hall asking “how many calls are you making for this and how do you determine who to call?” Hall responds by e-mail on the same date that they would make “about 630 hours in total” calls, but it would depend on the quality of the computer “CIMS” data provided by Del Mastro’s campaign office. He added that “who” and “when” they made the calls would depend on Del Mastro and that “We will work with your campaign is the bottom line.” Del Mastro replied to Hall by email on September 15, 2008:

Ok, that’s great Frank. When can we get started and how do I pay you (Visa?)

I do have priorities and I’d like to get going asap.

We are meeting at 8 am tomorrow and I will determine the poll list for you to start with and have CIMS folks coming in first thing to facilitate things with you.

How do I reach you tomorrow morning?

[21] Hall testified that Del Mastro instructed him to get in touch with his campaign manager, John McNutt (McNutt) to work out the details. On September 15, 2008, Hall and McNutt contact one another and Hall forwarded a copy of the quote to McNutt for signature in order to proceed. On the same day, Hall received an electronic file by e-mail from Doug Del Mastro (the brother of Dean Del Mastro) which contained past electoral data for Conservative Party supporters in the Peterborough riding (the CIMS data). The data was “raw data” which needed to be cleaned up to remove duplicate names and bad telephone numbers. Hall also received poll lists from McNutt by email, identifying priority polls that Holinshed was to focus on first. Halls’ understanding from his conversations with Del Mastro and McNutt was that Holinshed should focus on calling areas that were targeted for door-to-door canvassing in order to reinforce the campaign’s presence in the community.

[22] Hall testified that Holinshed began working on the data immediately. On September 16, 2008, Hall received a faxed copy of the quote signed by McNutt and dated September 15, 2008 authorizing Holinshed to proceed. Hall told McNutt by email to provide 50% of the payment “now” and the balance by the end of the following week.

[23] Hall testified that Holinshed received two cheques signed by Richard McCarthy (Del Mastro’s Official Agent for the election). One cheque was in the amount of $10,000 dated September 18, 2008 and the second cheque was dated September 25, 2008 in the amount of $11,000. The cheque for $10,000 was deposited in Holinshed’s bank account on September 18, 2008. Holinshed’s bank records as well as emails were made exhibits at trial.

September 21, 2008

[24] It is the testimony of Hall and David Pennylegion, a former Holinshed employee who supervised the calling for the Del Mastro campaign during the election period that voter identification calls commenced September 17, 2008. Pennylegion testified that he supervised the preparation and sent reports based on the calling data to McNutt. Pennylegion’s correspondence and reports were entered into evidence. On September 21, 2008 Del Mastro e-mailed Hall asking “How are things progressing with voter I.D.’s?” Hall responds that results are being sent to McNutt as instructed and asks Del Mastro “How are things feeling on the ground?” Del Mastro responds:

Things on the ground seem good, but I’m simply not going to get to all of my key area’s there isn’t enough time.

So if I can’t get to every door, knowing which ones are mine becomes critical.

The party assures me that their research tells them that the riding is not close but I hate to leave anything to chance!

I look forward to hearing from you, please cc me on communications.

[25] Introduced into evidence was the “script” that Pennylegion testified was used by Holinshed employees in making the voter identification calls. (Appeal Book, Volume 4, pages 1311-1312). It is readily apparent that the script indicates that the call is being made “on behalf of your member of Parliament and Conservative candidate, Dean Del Mastro…………..[who] is hoping for your support on Election Day, October 14.”

[26] The transfer of polling data from CIMS to Holinshed is detailed in emails between Hall and McNutt. Hall acknowledges receipt of the data and McNutt indicates that more data will be forthcoming.

[27] The Del Mastro campaign had a meeting on or about September 23, 2008. Del Mastro, McNutt and McCarthy were present. In the Agreed Statement of Facts #1 (Appeal Book, Volume 1, page 133 at pg. 137 paragraph 12 (g)) there is a handwritten note dated September 23, 2008 written by Richard McCarthy titled “Additional Election Expenses” which has the notation “Put stop payment on $ 11,000 cheque”. Hall testified that he did not deposit the $ 11,000 cheque dated September 25, 2008 from the Del Mastro campaign because McNutt told him the cheque had been cancelled. Hall later spoke to McCarthy, who told him the campaign was having problems with their spending limits and would likely not be able to fulfill their prior commitment to Holinshed. Hall testified that he suspended further calling on behalf of the Del Mastro campaign on October 2, 2008 and he sent an email to Del Mastro advising him of the same. This e-mail sent by Hall on October 2, 2008 states that he (Hall) has “halted your calling” and that he spoke to “your Official Agent (McCarthy)” who told him “that he was way over his spending limit……….and will likely have a problem meeting his commitment to us.” Hall goes on to state in the email “In terms of contract we are about at the half-way point with costs.”

[28] Del Mastro responds by email on October 2, 2008 with a request that Hall call him “asap.”

[29] Hall testified that he called Del Mastro. Hall states that Del Mastro told him that he (Del Mastro) wanted the calling resumed as quickly as possible and that he would pay for it himself. Del Mastro also said that he needed to work with Hall on the invoicing and that he preferred that the invoice be dated prior to the election campaign period. Hall advised Del Mastro that would not be a problem. Del Mastro also stated that he was impressed with Holinshed’s work and that he wanted to also purchase a customized software package that he and Hall had discussed prior to the election campaign called “GeoVote”. Del Mastro asked Hall to combine all of the services together in one quote.

[30] The “GeoVote” was a future software program that Del Mastro and Hall had discussed in the summer of 2008. It had yet to be built. The plan was to develop a product that was similar to Google Maps, with associated voter data to specific buildings and residences in an electoral district. However since the program would not be built or used until after the election period, any cost associated with “GeoVote” would not be an election expense.

[31] In an email dated October 3, 2008, Hall forwards under cover of a letter dated June 20, 2008, a quote and contract dated June 22, 2008 which combined the voter identification and GOTV telephone campaigns together with the “GeoVote” program in one invoice. The total amount of the invoice was $43,476 less “deposit” of $10,000, which was the amount already paid to Holinshed.

[32] Hall testified that the telephone voter identification calls resumed on behalf of Del Mastro. Updated reports were sent to McNutt every few days.

[33] Hall testified that he picked up a cheque from Del Mastro’s office on October 9, 2008 in the amount of $21,000, drawn on Del Mastro’s personal chequing account with his signature. The cheque, which is an exhibit at trial, bears the date of August 18, 2008. Holinshed’s banking records indicate that the sum of $21,000 was deposited by Holinshed on October 10, 2008.

[34] The banking records of Del Mastro’s personal chequing account were filed as exhibits. On October 9, 2008, the bank records indicate that there were insufficient funds in Del Mastro’s chequing account to cover the full amount of the cheque. However, on October 10, 2008 there were two online banking transfers of $500 and $11,500 which increased the balance in the account to $21,679.64, which was sufficient to cover the cheque.

[35] Since Hall had already received $10,000 from Del Mastro’s campaign, Hall testified that Del Mastro told him to return those funds to his Official Agent (McCarthy). On October 31, 2008, Holinshed issued a cheque for $10,000 to Del Mastro’s campaign. That cheque was deposited in the campaign account on November 3, 2008.

[36] In the Agreed Statement of Facts #1 (para 12 (h)), it is acknowledged that Richard McCarthy wrote a handwritten note on Holinshed Research Group letterhead dated October 31, 2008: Return of deposit in the amount of $10,000 sent in error to Dean Del Mastro’s campaign account. Invoice to be sent to EDA [Electoral District Association] detailing portion relating to campaign.

Election Day - October 14, 2008

[37] Hall testified that on October 14, 2008, Election Day, Holinshed conducted a GOTV campaign for Del Mastro. Telephone calls were made to people identified (the voter ID calls) as persons who had said that they were going to vote for Del Mastro, to confirm that they had voted or were intending to do so.

[38] Hall and Del Mastro exchanged emails on Election Day. Del Mastro was asking Hall how things were going at his end. Hall responded that Del Mastro’s vote seemed to be getting out and they (Holinshed) were “pushing”. Del Mastro replied “Great keep pushing. Spiro says I need to win big so that the libs leave me alone!”

[39] Payroll records for Holinshed were admitted into evidence. In addition, in the Agreed Statement of Facts #2 (Exhibit #19 para. 6); the evidence of a Sandra Cliffe was admitted. She was the Human Resources Manager at Holinshed during and after the 2008 election period. She paid Holinshed employees, including employee callers, for work done during the election period. The records introduced (in the Agreed Statement of Facts) detail:

(a) A total of 335.6 hours on voter identification calling for the Del Mastro campaign during the election period;

(b) In respect of Election Day, a total of 318.35 hours on GOTV calling for all calling for all campaigns. The evidence at trial was that Holinshed was making GOTV calls for approximately 12 candidates on Election Day. However, the estimated evidence was that approximately one-half of the total of 318.35 GOTV hours was spent on the Del Mastro campaign.

(Note: There were no exact records of Holinshed for how many actual hours were spent in calls for the Del Mastro campaign on Election Day)

The Post-Election $1,575 invoice from Holinshed to Del Mastro

[40] Hall testified that, after the election, he contacted Del Mastro and McNutt to get started on developing the “GeoVote” program that Del Mastro had said he wanted to purchase. Hall spoke to Del Mastro on November 27, 2008. They discussed the “GeoVote” program as well as data work that Del Mastro wanted to have Holinshed complete. Hall testified that the data work was to be paid for with a small amount of money that Del Mastro said he had left over from his election budget, about $1,500. Del Mastro asked Hall to provide him with an invoice or quote that was dated within the election campaign period. Later, Del Mastro discussed with Hall how the invoicing for the “GeoVote” should be structured. A review of the emails indicates that Hall was pressing Del Mastro to get on with the “GeoVote” program development, in and around November 27, 2008.

[41] On December 6, 2008, Hall testified that he received an email from Del Mastro stating “Any luck with my invoices?” Hall responded that he had some concerns that any contract with Del Mastro’s MP office (for the “GeoVote” program) would become void in the event of another election. Hall wanted to know if the contract with Del Mastro could be placed with the Peterborough Riding Association. Del Mastro replied that he still wanted to proceed as they had discussed and he did not foresee the concerns that Hall outlined. Then in the email Del Mastro stated:

That said the portion pertaining to the election writ is what I need for now…..

[42] Hall testified that he understood this reference (para. [41]) was the quote for the data work that they had discussed after the election.

[43] Hall testified that as a result of these communications, he sent Del Mastro an e-mail containing three quotes and an invoice on December 12, 2008. One quote and the invoice were backdated to September 14, 2008 in the amount of $1,575. The cover letter prepared by Hall was also backdated to September 14, 2008 and stated, “As requested, I am pleased to provide you with a quote for limited voter GOTV for your riding……..As discussed I hope this fits with your budget.” The services in the quote and the invoice were described as “GOTV effort (live calls) on e-day and on specified advance poll days as required.”

[44] The other two quotes provided by Hall on December 12, 2008, were also backdated to June 20 and November 24, 2008 respectively. The June 20 quote in the amount of $14,175 inclusive of taxes indicated that it was for “GeoVote” services on behalf of the Conservative Riding Association. The November 24 quote in the amount of $7,434 inclusive of taxes indicated that it was for “GeoVote” services on behalf of Del Mastro as Member of Parliament. Hall testified that the “GeoVote” services had been divided up in this manner as Del Mastro had instructed.

[45] On December 12, 2008, Hall testified that he received copies of the quotes signed by Del Mastro. The September 14, 2008 quote (para. [43]), now had Del Mastro’s signature and a handwritten date of September 14, 2008. The June 20 and November 24, 2008 quotes (para [44]), now had the signatures of Del Mastro but with a handwritten date of December 12, 2008.

[46] On December 12, 2008, McCarthy issued a cheque payable to Del Mastro in the amount of $1,575 for “Holinshed Service Costs.” On December 15, 2008, McCarthy issued another cheque payable to Del Mastro in the amount of $10,000, purportedly as reimbursement for the June 20, 2008 quote of $14,175.

[47] Holinshed never received any payments in relation to the three quotes sent December 12, 2008 (as referenced in [43] above).

[48] The $1,575 quote received on December 12, 2008 and backdated to September 14, 2008 and executed by Del Mastro with a handwritten date of September 14, 2008 finds its way into the Electoral Campaign Return. Dean Del Mastro signed the solemn declaration in his electoral campaign return on February 10, 2009. McCarthy, as Official Agent, executed the solemn declaration on the Electoral Campaign Return on February 11, 2009. The solemn declaration attests that the contents of the return are correct and the election expenses are properly recorded. This Electoral Campaign Return was subsequently filed with Elections Canada as required under the Canada Elections Act.

[49] Although Del Mastro had paid $21,000 to Holinshed for the services provided during the election period, his campaign return stated that the election expense paid to Holinshed was in the amount of $1,575.

[50] Hall testified that in the months after the election, he continued to try to move forward with the agreement to build a “GeoVote” system for Del Mastro, but Del Mastro was not responding. Eventually, Hall and Del Mastro had a falling out which resulted in Del Mastro terminating the “GeoVote” contract with Holinshed.

[51] Hall later went to Elections Canada and told them about the work done by Holinshed for Del Mastro during the election period.

Summary of Dean Del Mastro’s Evidence

[52] For the purpose of this Appeal, I do not propose to summarize the 2½ days of testimony of Dean Del Mastro at trial, except as it may relate to the issues detailed in the grounds of appeal.

[53] Del Mastro testified at trial that the $21,000 cheque drawn on his personal account dated August 14, 2008 was a deposit for the “GeoVote” software program yet to be developed.

[54] Del Mastro testified that McNutt, as the campaign manager, never had the authority to sign the quote dated September 14, 2008 prepared and forwarded by Holinshed. While McCarthy signed the cheque for $10,000 as well as a post-dated cheque for $11,000 and forwarded them to Holinshed, this was in error and as such the post-dated cheque was cancelled. Del Mastro stated that he did not learn of the contract until some days later. He said that when he learned of the contract from McNutt, they agreed that the contract would be cancelled. Del Mastro stated that he spoke to Hall to clarify what Hall would be doing for the campaign and Hall agreed to return the cheques.

[55] In relation to the $1,575 invoice and contract, Del Mastro testified that the parties had reached an agreement for Holinshed to do the GOTV on Election Day for $1,575 inclusive of tax. Del Mastro testified that the contract was negotiated during the Writ period and that the invoice was received later.

[56] Dean Del Mastro’s testimony can be generally characterized as a denial of much of Hall’s testimony and a denial of the emails found on Frank Hall’s laptop particularly in the period September and October 2008. Indeed, the defence made an allegation that the various emails in September and October 2008, as outlined above, were fabricated. In relation to other emails, Dean Del Mastro claimed no recollection. In relation to the $21,000 cheque drawn on his personal account, he maintained that it was issued on August 18, 2008 and it was a good faith payment on the future “GeoVote” program that he wanted to purchase from Holinshed. He testified that he did not know when the cheque was sent to Holinshed, and that it was possible that the cheque was not picked up until October.

[57] Del Mastro testified that the Election Day GOTV contract was negotiated by Bruce Fitzpatrick, who was running Del Mastro’s in-house GOTV Election Day campaign. He testified that Hall and Fitzpatrick negotiated the contract for the services to be provided by Holinshed and the invoice of $1,575 reflected what they (Hall and Fitzpatrick) negotiated. He stated that Holinshed would conduct only a small part of the GOTV campaign.

[58] It is the testimony of Del Mastro that the CIMS information transferred to Holinshed on September 15, 2008, related to the $1,575 agreement. Del Mastro acknowledged that his brother Doug, who was responsible for managing their “CIMS database” during the campaign, sent voter data from the campaign CIMS database to Holinshed on September 15, 2008. Del Mastro testified that this information was sent so that Hall could determine which supporters he would assist with in relation to the GOTV program.

[59] Del Mastro stated that the quote documents he received from Hall in December 2008 represented what he and Hall agreed to:

(a) $1,575 for limited GOTV support on Election Day;

(b) $14,175 for the Peterborough Electoral District Association’s share of the “GeoVote” software program; and

(c) $7,434 for his constituency share of the “GeoVote” software program.

[60] When asked why he had backdated his signature on the GOTV quote of September 14, while dating his signature on the other two quotes with the date of December 12, Del Mastro stated that the former related to an earlier agreement or understanding, but that there was some confusion concerning the latter agreement in the summer of 2008.

[61] Del Mastro did not call Doug Del Mastro or Bruce Fitzpatrick as witnesses at trial, although he said that both witnesses played important roles during his campaign and interacted with Holinshed during the election period.

First Issue on Appeal the “Commercial Value” Argument

[62] In relation to the conviction on Count #1 and to a certain extent in relation to Count #2, the Appellant argues that the trial judge erred by focusing primarily on the amount of money that Holinshed received, as opposed to how much value there was in Holinshed’s election telephone work.

[63] This is not to suggest that the defence in any way abandons its argument that reasonable doubt exists and that the Crown failed to prove its case beyond a reasonable doubt. The reasonable doubt ground of appeal will be discussed later in these reasons. However, the appellant’s counsel, Mr. Adler, submitted that the “commercial value” argument was the “key” ground of appeal.

[64] The premise of this ground of appeal as advanced by the defence is that, accepting that there was a $21,000 contract entered into between Del Mastro and Holinshed, the trial judge ought to have determined:

(a) how much of the telephone work was really done, and therefore;

(b) how much of the money that Holinshed received was actually earned by Holinshed during the election period, and thereafter;

(c) what was the actual value of this proven telephone work, regardless of what the contract or invoices claimed.

Canada Elections Act (CEA)

[65] The analysis for Count #1 begins with s.407 (1) of the CEA. This section provides:

that 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.

[66] Next, reference is made to s. 407 (3)(e) of the CEA which provides:

An election expense referred to in subsection (1) includes a cost incurred for, or a non-monetary contribution in relation to ……the conduct of an election surveys or other surveys or research during an election period

[67] The definition of “cost incurred” is provided in s. 407 (4) of the CEA which states:

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

[68] Section 440 of the CEA provides that there are limits on the amount that a candidate is permitted to spend on an election campaign during the Writ period. There is no dispute that the limit for Dean Del Mastro in the Peterborough electoral riding for the 2008 election was $92,566.79. There is also no dispute that the electoral return submitted by McCarthy and Del Mastro was in the amount of $91,770 and that the return inter alia reflected an election expense related to work by Holinshed during the election period in the amount of $1,575.

[69] Section 443 (1) of the CEA states “no candidate, official agent of a candidate…. shall incur election expenses in an amount that is more than the election expense limit calculated under section 440.”

[70] The sections of the CEA that are relevant to the Appellant’s argument [outlined at paragraphs [62] and [64] above] are as follows:

(a) Section 2 of the CEA provides the definition of “non-monetary contribution” and which uses the terminology of “commercial value of a service.” The section provides:

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

[71] The Appellant submits that the “interplay of s. 2 (“commercial value”)” with s. 406 and 407 of the CEA meant that the Crown had to prove as essential elements beyond a reasonable doubt (and failed to do so):

(a) that telephone calls were actually made by Holinshed during the Election Writ period of September 7 to October 14, 2008;

(b) that those calls directly promoted Del Mastro’s campaign; and

(c) proof of the actual number of calls made and therefore their actual commercial value; and

(d) that this value caused the campaign to exceed the statutory limit on spending.

[72] On the evidence, there is no question that Hall, after sending the quote but before the contract was executed, agreed to an amendment wherein the agreement provided that 630 hours of calls would be made in relation to the contract services. The Agreed Statement of Facts #2 (para. 6 (a) and (b)) details that 335.6 hours of calls were made by Holinshed in relation to voter identification in the Peterborough riding; and that 318.35 hours of calls were made on Election Day (GOTV). However, the GOTV calls were made for approximately 12-13 candidates that Holinshed had under contract. The evidence was that of the total of 318.35 hours that approximately one-half of the total GOTV calls were made in relation to the Del Mastro campaign.

[73] In support of the Appellants argument on this ground, there was also reference made to the Agreed Statement of Facts #2 (Exhibit #19) and the decisions in Callahan v. Canada (Chief Electoral Officer) 2010 FC 43. In addition, there was filed as Agreed Statements of Fact an email of Howard Saunders, an auditor at the Political Financing and Audit Division of Elections Canada. During the 39th and 40th federal general elections, Mr. Saunders reviewed the campaign returns and related documents for 13 candidates and associated electoral district associations (EDA’s) regarding polling and telephone data collection services performed by Holinshed Research Group. More particularly, there is extensive reference to the campaign of Mr. Rick Norlock, a candidate in the 40th federal general election.

[74] Counsel for the Appellant argues that the Norlock information and ruling by Mr. Saunders in relation to the Norlock campaign is relevant. Mr. Saunders states in a memorandum dated March 7, 2011, that “what should be recognized as an election expense on Mr. Norlock’s return is the commercial value of what was consumed during the writ period. The timing of the expenses is not relevant in determining Mr. Norlock’s election expenses.”

[75] Mr. Adler’s argument relating to the Saunders statements in relation to the Norlock expenses ignores the context surrounding the Norlock matter. It is clear that Elections Canada, in the Norlock matter, was dealing with work done by Holinshed during the writ period and work that was outside the writ period. Therefore, an allocation in relation to the invoice delivered by Holinshed had to be made applying the concept of commercial value. The Norlock matter does not assist the Appellant in this appeal. The evidence at trial was that the work done by Holinshed was all within the writ period. Further, contrary to the argument advanced by the Appellant, I do not accept that the Saunders email stands for the proposition that in relation to every election period expense, a determination of “commercial value” has to be undertaken in relation to each item of expense. That is not the intention or meaning of the CEA and it is not practical or reasonable. Further, the fact that candidate Norlock was charged less than candidate Del Mastro is not a factor to be considered in relation to an item of election expense or the election reporting return.

Reasons of the Trial Judge

[76] In relation to the “commercial value” argument at trial, the trial judge, after reviewing the relevant sections of the CEA stated:

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 includes a cost or non-monetary contribution. Five items are listed, including subsection (e); elections 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 Callahan, [Callaghan v Canada,(Chief Electoral Officer), 2010 FC 43] 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 21, 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, that statute is clear. 407(3) applies, thus an analysis of facts as within the context of 407(1) is unnecessary.

[77] Consequently, the trial judge held that as a result of her legal ruling on this issue, she “would not be referring to the evidence of the Defense witnesses Ellis, Parrin (sic), Horrigan, Humphries (sic) or Barry”. To provide context, a summary of the defence witnesses referenced is as follows:

(i) Brent Perrin was the chair of canvassing for the Del Mastro 2008 election campaign. He testified that he was provided with walk sheets for canvassing by either Doug Del Mastro or an Ashley Brown. His understanding was that the walk sheets were generated from the CIMS database. After canvassing, he would return the walk sheets to Doug Del Mastro or whoever was putting data into the CIMS database. He had no interaction with Holinshed or Hall.

(ii) Susan Horrigan donated $50 to Del Mastro in 2008. She had no recollection of receiving any call soliciting her support, but she also testified that it was so long ago she would not remember.

(iii) Garry Humphreys donated $100 to Del Mastro’s campaign in 2008. He was pretty confident that he did not receive a call soliciting his support during the election period, but he also said that it was possible that he did receive one.

(iv) Douglas Barry testified that he called people during the 2008 Del Mastro campaign to see if they wanted a lawn sign. He made his calls using lists from the CIMS database. He said that it was a time-consuming process and if he made 40-50 calls a day, he considered that an excellent job. He testified that he had no way of knowing what other calling was being done for the Del Mastro campaign in 2008.

(v) Alan Wilson was Del Mastro’s “wing man” during the 2008 election campaign until he was sidelined by a heart attack. He had no involvement with voter identification and he was not aware that voter identification was used in the 2006 Del Mastro campaign, when he was also Del Mastro’s “wing man”. He stated that he had no idea where the information in the CIMS database came from.

(vi) Randall Ellis was the sign coordinator for the Del Mastro 2008 campaign. He would get a list of signs to install or repair from the office manager. His understanding was that the sign list he received was generated from the CIMS database. On occasion he saw Doug Del Mastro inputting data into the CIMS database. He could not testify as to what information McNutt might be receiving or what information or data Doug Del Mastro might be receiving from McNutt.

Analysis

[78] The Appellant’s argument is that the trial judge erred because she did not make a determination of how much of the telephone work was really done; how much of the money that Holinshed received was actually earned by Holinshed during the election period; and what was the actual value of the proven telephone work regardless of what contract or invoices claimed. I find that this argument fails and that the trial judge was correct in the analysis provided in her reasons for judgment.

[79] The trial judge was correct that “commercial value” of the services provided by Holinshed was not relevant to her determination. The trial judge correctly noted that the “commercial value” of a service is only relevant when it is necessary to determine the value of a “non-monetary contribution” as an election expense. A “non-monetary contribution” is defined in section 2(1) of the CEA as the “commercial value” of a service, to the extent that it is provided without charge or less than its commercial value.

[80] It was not the Crown’s case that Del Mastro had obtained a “non-monetary contribution” from Holinshed or that Del Mastro had received services at no charge or at less than their commercial value. Accordingly, the “commercial value” of the services at issue was not relevant.

[81] Reduced to its simplest terms the issue was whether Del Mastro incurred a cost in relation to Holinshed services during the election period. If he did, then that cost was an election expense under s. 407(3) of the CEA.

[82] The trial record amply supports the trial judge’s finding that the $21,000 contract with Holinshed was an election expense. On the trial judge’s findings, Del Mastro negotiated an agreement with Holinshed for the provision of voter identification and GOTV telephone services during the election campaign period at a cost of $21,000. There is evidence on the record that support the trial judge’s findings that the $21,000 was paid by Del Mastro to Holinshed during the election campaign period. Accordingly, it was open on the evidence at trial to find that the cost incurred of $21,000 was in relation “to the conduct of election surveys or other surveys or research during an election period” (CEA s.407 (3)(e)).

[83] The authorities do not support the Appellant’s interpretation of the CEA, in particular the argument that the “commercial value” of each service provided must be taken into account in determining the amount of any cost incurred. The reliance of the Appellant on the Callaghan decision requires a brief comment. In The Chief Electoral Officer of Canada v. Callaghan et al., 2011 FCA 74, the Federal Court of Appeal was dealing with a situation where advertising costs had been incurred centrally by a political party, and had been allocated to individual campaigns based on the amount of room they had in their spending limit. One of the issues for consideration on the appeal was whether the Chief Electoral Officer had acted reasonably in declining to accept the individual cost allocations as valid election expenses.

[84] The Federal Court of Appeal, in concluding that the Chief Electoral Officer had acted reasonably, went on to identify a number of factors that suggested the scheme was a cost-shifting arrangement rather than a bona fide cost allocation. One of the factors identified by the court was the fact that the allocation of costs bore no relation to the benefit received. Therefore, the court held that given the close relationship and alignment of interest between the party and the candidates, the significant gap between the expenses claimed and the benefits received cast doubt on the validity of the claim that the expenses had been incurred by the individual candidates. (para. 100)

[85] However, the decision in Callaghan does not stand for the proposition (advanced by the Appellant) that the “commercial value” of an expenditure must invariably be taken into account in determining the amount of an election expense. Further, it is not a defence under the CEA (as advanced in this case) that another candidate may have paid less for a similar product or service, or even that one could have made a better deal if one had been a better negotiator.

[86] Therefore, in determining the issue whether the Appellant “incurred a cost” and where no non-monetary contribution is alleged, one looks at what the Appellant paid or was obliged to pay. One does not look at the “commercial value” of what the Appellant received. Further, as was stated in Callaghan (para.96), “it may normally be inferred from the payment of an invoice that the payment was made to discharge a legal obligation.”

[87] The Appellant also relied on the decision in Conservative Fund Canada v. Canada (Elections) 2010 ONCA 882, for support of his argument on this ground of appeal. In the Conservative Fund case, the argument was advanced that the portion of an expense relating to GST did not fall within the definition of an “election expense” because that portion would be refunded by way of a GST rebate later. The Court of Appeal rejected this argument, holding that the amount paid inclusive of GST was the cost incurred and therefore the amount of the election expense. The fact that some part of the amount paid would be returned later was irrelevant. I have considerable difficulty understanding why the Appellant advanced this case as standing for the proposition that the “commercial value” of the service received is relevant to determining the cost incurred. The Conservative Fund case clearly does not support the argument advanced by the Appellant.

[88] The appellant’s argument that the trial judge ignored the six defence witnesses (outlined at para. [77] above), only reflects that the trial judge, after concluding that the services provided by Holinshed fell within the definition of “election expenses” under the CEA, and that s. 407 (3) applied, these six witnesses evidence was no longer relevant. The defence position at trial was that even if Holinshed provided services to Del Mastro’s campaign, those services had not been “used” in the campaign. The trial judge found that the services provided by Holinshed to the Del Mastro 2008 campaign were election expenses captured by s 407 (3)(e) of the CEA. Therefore, any testimony based on the defence position of services “used” could not be relevant.

[89] I find that the trial judge did not err and was not required to determine the “commercial value” of the contract with Holinshed. Further, I find that the trial judge did not err in concluding that the $21,000 contract with Holinshed was an election expense under the Canada Elections Act. Therefore, this ground of appeal is dismissed.

Second Ground of Appeal - Findings on Credibility, Different Standards of Scrutiny, and Adverse Inferences

Trial Judge’s Reasons

[90] The trial judge in her reasons reviewed the evidence of Dean Del Mastro and Frank Hall, who she described as the “two key witnesses.”

[91] The trial judge reviewed Del Mastro’s testimony, which extended over three days. With respect to the “heart of the allegations”, Del Mastro “testified he had an agreement with Frank Hall/Holinshed, as of June or July 2008 for non-election services, that is GeoVote.” At that time, although Del Mastro was offered the voter ID services, he declined.

[92] The reasons relate that Del Mastro testified that he “had given the go-ahead for work on the GeoVote to start, and on August 18, 2008 he wrote a $21,000 personal cheque to Holinshed because the work would not start until Holinshed got paid.”

[93] The reasons go on to relate that 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.”

[94] The trial judge relates that Del Mastro testified that the election campaign “was never in danger of going over its limit” and “the only agreement for election services [with Holinshed] 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.”

[95] The trial judge referenced the time line filed as Exhibit #33 and Del Mastro’s testimony relating to numerous contracts and invoices drafted by Frank Hall over the fall of 2008 and which Del Mastro stated were “filled with errors and did not reflect the discussions between him and Hall about GeoVote services to be provided.” The trial judge stated Del Mastro testified that versions of the proposed contract continued into 2009. However, “in August 2009 Del Mastro cancelled the contract and severed relations with Holinshed.”

[96] The trial judge correctly summarized that “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 15, 2008 contract.” This became an important issue at trial. The trial judge stated that while she accepted some of Del Mastro’s evidence, nevertheless she had 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.” The trial judge found that there were a number of inconsistencies and improbabilities in his evidence and “that at times, the way he testified” led her to believe “that he was not telling the truth.”

[97] The findings on credibility of the trial judge were elaborated on by specific examples of the testimony of Del Mastro where he did not answer the questions put to him in cross-examination and examples where he “frequently obfuscated the evidence.” The trial judge also referred to a number of specific areas of Del Mastro’s testimony that caused her concern as “being internally inconsistent or making no sense at all.”

[98] The trial judge in her analysis of credibility then considered the evidence of the Crown’s “key witness” Frank Hall. The trial judge reviewed at some length the testimony of Frank Hall. The trial judge stated in relation to Hall’s evidence:

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.

[99] The trial judge dealt with a number of concerns raised by the defence with respect to Hall’s evidence. In addressing these concerns, she also considered whether the accumulation of those various issues or concerns “might raise [her] suspicions about Hall’s credibility” and she indicated that “they have introduced some hesitation about his evidence.” However, the trial judge concluded that “what little concern they may give me is overcome by the ample corroboration of [Hall’s] evidence with respect to the heart of the allegations.”

[100] The trial judge made a specific finding that:

significant portions of Hall’s testimony are corroborated by the evidence of David Pennylegion, Colin Hall, and the agreed statement 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 emails 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.

Analysis

[101] The trial judge provided cogent reasons in support of her credibility findings. Credibility findings are the unique province of the trial judge and are entitled to a very high degree of deference. (R. v. Aird, 2013 ONCA 447 at para.39 and R. v. Marshall, 2015 ONCA 692). In assessing credibility, a trial judge has the opportunity to pay close attention to not only what is said, but how it was said. An appellate court, by contrast, is poorly situated to assess credibility. As was noted in R. v. Howe (sub nom J.H.) 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 46:

A lifeless transcript of the testimony cannot possibly replicate the unfolding of the narrative at trial. Nor can oral argument and a selective review of the record possibly put an appellate court in as good a position as the trial judge when it comes to credibility determinations[.]

[102] It is not the role of the appellate court to re-try the case or revisit credibility findings. In order to challenge such findings, the appellant must demonstrate that the trial judge clearly erred in her approach to the evidence.

The Differing Standards of Scrutiny Argument

[103] The appellant submitted that the trial judge erred in assessing the evidence of Del Mastro and Hall by subjecting that evidence to different standards. As the Ontario Court of Appeal stated in R. v. Howe (supra) and R. v. Aird (supra) and R. v. Marshall (supra), the different standards of scrutiny argument is difficult to make successfully. The appellant must “point to something in the reasons of the trial judge or perhaps elsewhere in the record that makes it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the [Crown’s witnesses].”

[104] I find that the appellant has failed to point to something that makes it clear that the trial judge applied different standards of scrutiny to the evidence. The appellant appears to ground his argument in an alleged differential treatment of the “absences of evidence.” (para. 31 Appellant’s Factum.) It is suggested that the drawing of an adverse inference made by the trial judge against the appellant for not calling certain witnesses, while not similarly drawing an adverse interest against the Crown because of its failure to call certain witnesses, is proof of the application of different standards. It is argued that Frank Hall’s failure to preserve phone records (relating to the mobile phone Hall used to call Del Mastro - re Agreed Statement of Facts #3 Vol. 5 Appeal Book) and the Crown’s failure to call Holinshed’s telephone employees should have resulted in the trial judge drawing an adverse inference against Hall and the Crown. This argument fails for the following reasons:

(i) The trial judge was not entitled to draw an adverse inference against the Crown in relation to the absence of evidence.

(ii) The adverse inference can only be drawn when that evidence was within the party’s power to call at trial; and the circumstances are such that there is no other explanation for the party’s failure to produce it.

(iii) In the present case, the Crown never had the evidence complained of. The phone records were never in the Crown’s possession, nor was a phone employee with material evidence to give ever identified.

(iv) While the lack of investigation into the phone records and their resultant absence may constitute a gap in the Crown’s case, it would be an error in law for the trial judge to draw an adverse inference against a party for failing to produce a witness who was never identified or evidence that was never in its possession.

(v) The Appellant’s actual position on this issue is not so much that the Crown failed to call an identified witness with extant evidence that was unfavourable to the Crown. Rather, it is that the Crown never obtained the evidence in the first place. Accordingly, the Appellant’s complaint relates not to the conduct of the trial, but to the conduct of the investigation. However, an adverse inference can only relate to the conduct of the trial.

[105] The reasons of the trial judge demonstrate a fair and even-handed approach in considering the evidence and the application of the same standard of scrutiny to the evidence of Del Mastro and Hall. Her review of the evidence of Hall and Del Mastro is in considerable detail and she carefully explains her respective findings of credibility. These findings are reasonable and are amply supported by the record.

Adverse Inference

[106] The trial judge drew an adverse inference from the appellant’s failure to call three witnesses who had material evidence to give on issues raised by the defence. The appellant and four other defence witnesses first raised the corroborative significance of Doug Del Mastro to the defence. In examination in chief, the appellant also raised the corroborative significance of Bruce Fitzpatrick and John McNutt to the defence.

The Trial Judge’s Reasons on Drawing the Adverse Inference as against Del Mastro

[107] The trial judge in her reasons, in drawing an adverse inference, referenced the Ontario Court of Appeal decision in R. v. N.L.P. 2013 ONCA 773, [2013] O.J. No 5878. The trial judge correctly stated the law as follows:

There is, generally, no obligation upon the Defence to call a witness, including the accused………

However, in some circumstances it makes sense and is legally permissible to draw an adverse inference based on the lack of evidence……

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.

[108] The trial judge stated, after reviewing the law, she was prepared to draw an adverse inference with respect to Del Mastro’s credibility. In her reasons, the trial judge related that “according to Del Mastro’s own evidence, three people were 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.” She stated that the three witnesses not called were Doug Del Mastro, Bruce Fitzpatrick and John McNutt.

[109] In her reasons, the trial judge stated that Doug Del Mastro was in charge of the CIMS database, its use by the campaign, and its use by Holinshed. She stated that Doug Del Mastro “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 [the] court.”

[110] The trial judge stated that “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.” Therefore, “he would have been in the position to offer evidence directly on controversial issues at trial including the $1,575 contract.”

[111] In relation to John McNutt, the trial judge in her reasons acknowledges that “by agreement of counsel”, McNutt was not testifying at trial. She states that she considered excluding him from consideration on the issue of drawing an adverse inference. However, the trial judge then made reference to final submissions of defence counsel “that the agreement not to call McNutt did not extend to missing evidence”. It appears that she accordingly referenced McNutt’s relevance and that he would have key evidence as the Campaign Manager relative to the “September 15th Voter ID and GOTV contract and the circumstances surrounding it.”

[112] The trial judge then drew an adverse inference on credibility (and based “on other concerns articulated”) which led her “to reject Mr. Del Mastro’s evidence on key issues”.

Analysis

[113] The Court of Appeal, in R.v. N.L.P., 2013 ONCA 773, [2013] O.J. No. 5878 held that the root of the adverse inference is that when a party fails to produce a material witness within its power to have produced, that failure leads to “the most natural inference, that the party fears to do so,” and that the “witness, if brought, would have exposed facts unfavourable to the party” (R. v. N.L.P. para 58). Integral to the assessment is whether it was within the power of one side to have called the witness (R. v. Jolivet 2000 SCC 29, [2000] S.C.J. No. 28 at para, 27; R .v. Lapensee 2009 ONCA 646, [2009] O.J. No. 3745 at para. 41) and whether trial counsel’s decision not to call the witness can be explained by factors unrelated to the truth of the testimony. (R. v. Jolivet ibid at para 28; R. v. Lapensee ibid at para 42).

[114] In R. v. N.L.P., the court made it clear that “where the accused in his own testimony first raises the corroborative significance of the witness to his defence: and then fails to produce that witness, the trial judge may appropriately draw an adverse inference against him. (R. v. N.L.P. paras. 65 and 67). Since the fact in issue has been introduced by the defence, the defence has assumed the evidentiary burden. In effect the defence has “sowed the seeds, in chief, of an explanation for the absence”. (R.v. N.L.P. ibid at para 68)

[115] The trial judge correctly articulated the relevance and significance of the evidence of Doug Del Mastro, Fitzpatrick and McNutt. The evidence of four other defence witnesses (Ellis, Wilson, Perrin and Barry) raised the corroborative significance of Doug Del Mastro’s evidence. The appellant’s testimony raised the corroborative significance of his brother Doug Del Mastro, as well as Bruce Fitzpatrick and John McNutt to the defence.

[116] There was no suggestion at trial that Doug Del Mastro, Bruce Fitzpatrick or John McNutt were not available to testify at the trial or was their absence explained by other factors.

[117] I find that the trial judge had cogent reasons and correctly applied the law to draw adverse inferences in relation to Bruce Fitzpatrick and Doug Del Mastro, who had material evidence to give on issues first raised by the defence. The failure of the defence to call these witnesses on material issues that Del Mastro himself raised, entitled the trial judge to draw an adverse inference with respect to his credibility. However, it should also be noted that the trial judge had other concerns with the nature of the testimony of Dean Del Mastro, which she articulated.

[118] I do have difficulty with the trial judge including John McNutt under the umbrella of drawing an adverse inference. The trial judge stated in her reasons that she “paused in considering Mr. McNutt’s absence” because “by agreement” McNutt was not testifying at trial. Indeed, the agreement of Crown and defence was that McNutt would not be called as a witness and that they would admit certain parts of his evidence by way of an Agreed Statement of Fact. The reasons provided by the trial judge for disregarding the agreement reached by counsel do not provide clarity as to the basis of her determination.

[119] In Watt’s Manual of Criminal Evidence s.36.02 (Carswell 2015 pg. 603), there is commentary on Informal Admissions. The author states that “as a general rule, an informal admission is a statement made by or on behalf of the [Defendant] which is adduced by [the Crown] as part of [the Crown’s] case. It may be oral or written. Conduct may also constitute an informal admission.” The text goes on to state: “Admissions are often characterized as an exception to the hearsay rule………………The admissions exception is a function of the adversary system. An admission need not be against the declarant’s interest….”

[120] Watt’s Manual of Criminal Evidence references are to informal admissions. However, in relation to the integrity and fairness of a trial and as a function of the adversary process, the informal agreements reached by counsel ought to be respected by triers of fact. That is not to suggest that informal agreements between counsel are not susceptible to being set aside by a trial judge in appropriate circumstances and are subject to the discretion of the trial judge. In the present circumstances, it appears that in the course of closing submissions, a request was made by the Crown that the trial judge draw an adverse inference in relation to the failure to call John McNutt. I find it violated procedural fairness to accede to the Crown’s submission, when counsel had previously agreed that Mr. McNutt’s evidence would not be necessary. This was a case in which volumes of evidence were filed with extensive use of Agreed Statements of Facts. The courts rely on counsel to meet prior to or even during the course of trial to facilitate and expedite the trial by making admissions which includes agreements on witnesses to be called at trial. While the trial judge has the discretion to override informal admissions or agreements, nevertheless, it should only be done in the clearest of cases. This was not one of those cases.

[121] Having found that the trial judge erred in drawing an adverse inference based on the failure to call John McNutt as a witness, I nevertheless apply the curative proviso under s. 686(1)(b)(ii) of the Criminal Code R.S.C., 1985,c.C-46. on the basis that no substantial wrong or miscarriage of justice has occurred. The error could not have affected the verdict or the finding on credibility. Based on the absence of the evidence of the witnesses Doug Del Mastro and Bruce Fitzpatrick, it is quite apparent that the trial judge had ample grounds to draw an adverse inference and would have in any event. Again, it should be noted that the trial judge outlined in significant detail her concerns relating to Mr. Del Mastro’s evidence, separate and apart from her drawing an adverse inference.

[122] Therefore, the second ground of appeal is dismissed.

Third Ground of Appeal - Failure to Refer or Apply R. v. W.(D).

[123] The appellant states that the trial judge failed to properly apply the correct burden and standard of proof as set out in R. v. W.(D), 1991 CanLII 93 (SCC), [1991], 1 S.C.R. 742 para 24. Objection is taken that the trial judge never even mentioned the authority “let alone the principles set out in it.”

Analysis

[124] A review of the reasons for judgment of the trial judge indicates she assessed the evidence in accordance with the principles in R. v. W.(D). After rejecting Del Mastro’s evidence and accepting Hall’s, the trial judge states:

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.

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.

[125] This ground of appeal fails. Trial judges are presumed to know the law. It is apparent that the trial judge turned her mind to reasonable doubt and she found that she had no reasonable doubt. It was not necessary for the trial judge to set out the principles of R.v. W.(D) in the classical manner.

Fourth Ground of Appeal - Electronic Evidence from Hall’s Laptop

[126] A significant portion of the Crown’s case relied on electronic documentary evidence, both as evidence and also as evidence not offered for its truth but to corroborate the testimony of Frank Hall.

[127] In this ground of appeal, counsel for the appellant for much of the oral argument, returned to the “commercial value” argument supra and the mathematics of calculating the “value” of the hours actually “used” as well as how many hours were spent by Holinshed. This “commercial value” argument has been sufficiently canvased previously and I find it has no merit in relation to the admission of the electronic records into evidence.

[128] The appellant, in his factum, challenged the integrity of the electronic records captured from Hall’s laptop computer and that there was no proof of the reliability of the documents or integrity of the system offered to the court.

[129] The trial judge acknowledged that the electronic evidence had “an important bearing on the evidence of key witnesses.” She noted that “Del Mastro takes the position that the e-data is unreliable evidence and ought to be given little or no weight.” I would note that this is the same issue argued on this appeal.

[130] The parameters of the search of Hall’s laptop in October 2012 is detailed by the trial judge. The trial judge explained that the search of Hall’s laptop computer was not a full forensic image. It was restricted to certain areas of the stored data that were believed to contain data relevant to the investigation. She stated “Hall testified about the reasons he wanted the search restricted in this way, including personal and client privacy and advice from a lawyer.” However, the trial judge held that “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 preclude me from relying on the electronic data for the various purposes offered. There is certainly no evidence of tampering.” The trial judge found no “air of reality” to the suggestion by the defence that emails, invoices and quotes had been altered, changed or tampered with; particularly after hearing the evidence of the two expert witnesses.

[131] As stated in her reasons, the trial judge “heard expert testimony from both the 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.”

[132] Corporal David Connors of the RCMP, testified as the Crown’s expert in forensic recovery, examination and interpretation of data created by computers. He conducted the search of Hall’s laptop computer. He searched for all incoming and outgoing emails and attachments between January 1, 2007 and September 30, 2009 that were sent to or from, or contained any of the names of a number of specified individuals, including Dean Del Mastro.

[133] When he carried out his search, Cpl. Connors captured “metadata” for the emails that were received on Hall’s computer, as well as the quotes and invoices created on Hall’s computer.

[134] Metadata is data about data. It indicates when a document was last created on a computer, or how and when an email was routed from the sender to the recipient.

[135] Cpl. Connors’ testimony related to the integrity and authenticity of emails and attachments that he seized from Hall’s computer. He confirmed that copies of electronic emails and attachments that were entered into evidence contained the same data as the originals.

[136] It was the testimony of Cpl. Connors that after reviewing the layers of metadata associated with emails and the attachments, he concluded that altering data without damaging the files would be difficult, even for an expert to accomplish. He testified that one could only change the date or text of an email after it had been sent out with some kind of editing software that would allow one to manipulate information at the data level. He was not aware of the existence of any such editing software. He testified that it was not simply a matter of changing the date or text in an email and it was something that he himself was unable to do.

[137] Kevin Lo is an expert with the same qualifications as Cpl. Connors. Kevin Lo was called as an expert by the defence. Lo’s testimony was that it was a better practice to take a forensic image of the entire hard drive of a computer, rather than conduct a limited search, as was done by Cpl. Connors. However, he took no issue with the fact the emails and documents recovered by Cpl. Connors were in fact found on Hall’s laptop. He testified that there was no issue with the metadata that had been recovered by Cpl. Connors. Kevin Lo also agreed that one cannot easily edit emails and their associated metadata after they have been sent. Indeed, he testified that it was not something he could do himself and he would need time and resources to figure out how to do it.

[138] The metadata obtained from Hall’s laptop indicated:

(a) the quote for voter identification and GOTV services, which Hall said he created on September 14, 2008 and sent to Del Mastro, was created on Hall’s computer on that date;

(b) the quote and invoice, which Hall said he had created on October 3, 2008 and sent to Del Mastro, were created on Hall’s computer on that date;

(c) the documents attached to Hall’s emails to Del Mastro on December 12, 2008 had been created after the election period. In particular, the quote and invoice in the amount of $1,575, backdated to September 14, 2008, were created on Hall’s computer on December 9, 2008.

Findings of the Trial Judge

[139] The trial judge, after analysing the expert testimony, held that the electronic records were admitted as evidence and as corroboration of Hall’s testimony. However, she added:

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.

Analysis

[140] The trial judge found that significant portions of Frank Hall’s evidence was corroborated by the evidence of David Pennylegion, Colin Hall and the agreed statements of facts and documents. The electronic records were only one element of the case. The trial judge was entitled to rely on the electronic records as circumstantial evidence of the commission of the offences and as corroborative of Hall’s testimony. There was “no air of reality” to the defence position at trial that the records had been tampered with. Further, the trial judge correctly ruled that the printouts of Hall’s emails were admissible, to the extent that Hall could authenticate them as their author. The trial judge appropriately considered the relevant sections of the Canada Evidence Act and the means by which electronic documents may be proven.

[141] The issues raised on appeal in relation to this ground of appeal have no merit. This ground of appeal is dismissed.

Fifth Ground of Appeal - Reasonable Doubt and being a Party to Count #3

[142] The appellant’s fifth ground of appeal on conviction is that the trial judge could not rely on the party liability provisions in s. 21 of the Criminal Code to convict Del Mastro of being a party to the offence relating to the filing of the false and misleading Electoral Return.

[143] I pause to note that the trial judge stated in her reasons that “the legal theories of liability are not contested.” Therefore, I infer that only on this appeal is this issue raised.

[144] The appellant submits that the Crown concedes that there is no provision under the CEA that states that it is an offence for a candidate to file a false or misleading statement, contrary to CEA s.563 (1)(a), s. 497(3)(v) and s. 550(5). It is an offence for the Official Agent (McCarthy) to do so. Therefore, the appellant argues that the CEA is a complete code and Del Mastro’s liability in relation to Count # 3 (and notionally Count #4 which was stayed), cannot be grounded on the Criminal Code s.21 principle of Del Mastro being a party to an offence committed by the Official Agent, Richard McCarthy.

[145] The appellant references a number of sections of the CEA, where by definition, persons are brought in as parties to an offence who “aid, abet counsel [or] collude” with others. It is argued that if the Criminal Code was to apply, there would not be any need for the CEA to have its own definition of “party”, nor for it to make specific reference to the Code with respect to other aspects of the CEA as illustrated in CEA s. 479(6)(b) and s. 511 (2) and (3).

[146] The appellant also argues that the Interpretation Act (s. 15 and 34(2)) provide that while the Criminal Code applies to procedural matters, it does not apply to substantive provisions “to the extent that the enactment otherwise provides.” The appellant’s position is that the CEA has its own provisions that delineates which offences are to include party liability - and therefore which offences are not—and the Criminal Code s.21 has no application to the CEA in relation to Count #3 (and Count #4). Therefore, only the Official Agent can be liable and Del Mastro cannot be a party to the offence.

Analysis

[147] The appellant’s argument relating to s.21 (1)(b) and (c) of the Criminal Code fails based on a plain reading of s. 34(2) of the Interpretation Act R.S.C. 1985 c. I-21, which provides:

All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Code relating to summary conviction offences apply to all other offences created by enactment, except to the extent that the enactment otherwise provides.

[148] The law is well settled that, pursuant to s. 34(2) of the Interpretation Act , the provisions of the Criminal Code will apply to offences created under another Act of Parliament, unless Parliament has clearly expressed an intention to the contrary. In Ukrainetz v. Canada (Attorney General) (1995) 1995 CanLII 3928 (SK CA), 39 C.R. (4th) 373 para.9, the Saskatchewan Court of Appeal held:

One may therefore conclude that to preclude the use of the Criminal Code in relation to an offence created by another enactment requires a clear expression of Parliament’s intention to do so. There being no expression of Parliament’s intention to so preclude the Code’s provisions from applying to the Tax Rebate Discounting Act, the imprisonment in default and probation provisions apply.

[149] The general rule is that the Criminal Code is only ousted, if the statute in issue contains a “complete code.” However, the fact that a statute may be silent, or that the statute has some provision touching upon the same subject matter as a provision in the Criminal Code, is not sufficient to manifest an intention on the part of Parliament to exclude the Criminal Code. (R. v. Ross (1981) 1991 CanLII 959 (BC CA), 68 C.C.C. (3d) 380 (B.C.C.A.) paras. 8-12; Multiform Manufacturing Co. v. R. 1990 CanLII 79 (SCC), [1990] 2 S.C.R. 624 at para.7)

[150] 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.

[151] 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.

[152] 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.

Reasonable Doubt

[153] The appellant, in oral submissions, argues that the trial judge failed to address the essential elements in relation to each count and as such she failed to consider evidence which ought to have raised a reasonable doubt.

Analysis

[154] The trial judge commenced her findings by stating that “criminal trials are not credibility contests.” Once she determined what evidence she accepted, the trial judge next considered whether “the Crown had proved its case beyond a reasonable doubt”.

[155] In relation to Count #1 (s. 443(1) of the CEA), which provides that no candidate or official agent shall incur election expenses in an amount that is more than the election expense limit, the trial judge made specific findings of fact:

• That 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 14, 2008, Hall provided Del Mastro with the Voter ID and GOTV quote dated September 14, 2008 for $21,000;
• This quote was addressed to Dean Del Mastro, MP, and the Federal Conservative Campaign and it was for one amount for all services (Voter ID and GOTV);
• The quote was signed on September 15, 2008 by John McNutt, the campaign manager and subsequently endorsed by McCarthy (the Official Agent) for payment in full;
• McCarthy wrote cheques dated September 18th and September 29th to make the payment;
• It is the finding that, in light of the timing of the contract and its language, the contract 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 15 to allow work to start on the contract;
• Voter ID calls began right away and updates were provided every two to three days by Holinshed to Del Mastro’s campaign, primarily through McNutt;
• The September 21, 2008 exchange between Del Mastro and Hall lays bare Del Mastro’s knowledge about the Voter ID calling for the campaign. [Vol.3 Appeal Book pg. 795];
• At least Del Mastro and McCarthy became aware of the fact that the Holinshed contract would put them over the election spending limits;
• Efforts were made to retract the payments from the campaign account and re-jig the contract to deflect some of the expenses from the election;
• There is no doubt that Holinshed’s work took place during the writ period and is an election expense under either s.407 (1) or (3) of the Canada Elections Act;
• What follows the election, as far as election expenses are concerned, is the continued discussion about 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 the trial judge finds to be only part of the election expense incurred by the campaign, and in practical terms, a misleading statement of election expenses.

[156] These findings of fact were clearly available based on the trial record and there is no error on the part of the trial judge. The campaign limits were admitted in the Agreement of Facts #1.

[157] In relation to Count #2 (CEA s. 405 (1) (a.1)), which provides that no individual shall make a contribution that exceeds $1,000 in total in any calendar year to (inter alia) the candidate of a particular registered party plus s. 405 (4) (a) which provides that a candidate may make a contribution of $1,100 (with inflation factored in) out of his own funds to his own campaign. Therefore, as the Agreed Statement of Facts provides, the maximum amount that Del Mastro could contribute to his 2008 election campaign was $2,100. The findings of the trial judge in relation to this count were:

• Holinshed halted the Voter ID calling on October 2, 2008 because they (Holinshed) had not received payment in full;
• Hall was made aware of overspending the election limits by McCarthy and Hall was willing to help the campaign by re-working the contract dates and descriptions. This is quite plainly reflected in numerous e-mails involving Hall;
• Del Mastro promised full payment of the $21,000 contract and calling resumed;
• Del Mastro at that point made the payment of $21,000 from his personal account.

[158] Again, these findings were available to the trial judge based on the record and there is no error.

[159] In relation to Count #3 (CEA s. 497 (3)(v)), the trial judge convicted Del Mastro as being a party to providing an electoral campaign return containing a false or misleading statement. The trial judge made a specific finding that the $1,575 invoice, which made its way into the electoral campaign return (Agreed Statement of Fact #1 para.5), “was only part of the election expense incurred” and was “a misleading statement of election expenses.” This finding was clearly available on the record.

[160] The trial judge then stated what was obvious from her findings of fact, namely, that the defence evidence did “not raise a reasonable doubt about the allegations” and the evidence that she accepted “does prove the case beyond a reasonable doubt.” The trial judge accordingly registered a conviction for Dean Del Mastro on all counts.

[161] I find that no err has been demonstrated and therefore this ground of appeal fails.

Disposition on Conviction Appeal

[162] The findings of fact made by the trial judge are entitled to deference in this court. They do not reveal any misapprehension of the evidence or any palpable or overriding error. The trial judge instructed herself on the essential elements of the offences charged and the burden and standard of proof. Her conclusions are grounded in evidence adduced at trial and untainted by legal error. Accordingly, the appeal as to conviction is dismissed.

Appeal as to Sentence

[163] Both the appellant and the respondent appeal the sentence imposed by the trial judge. I will deal with the Crown appeal as to sentence first.

Crown Appeal as to Sentence

[164] Mr. B. Gluckman, on behalf of the Crown, submitted that the sentence imposed by the trial judge was unfit and a sentence in the range of nine to twelve months incarceration was warranted in all the circumstances of this case.

[165] The Crown appeals the sentences imposed on Del Mastro pursuant to s. 813(b) of the Criminal Code, on the basis that the sentences fail to adequately denounce and deter Del Mastro’s conduct that the Crown states essentially amounted to a deliberate and concerted fraud on the electoral system by a sitting Member of Parliament in order to gain an advantage in a federal election. The Crown submits that the sentences are “clearly unreasonable”.

[166] The Crown submits that violations of the election spending limits and deliberate and concerted attempts to evade compliance with the honest reporting of contributions and expenses, fundamentally undermine the fairness of elections and constitute a serious affront to our democratic system of government.

[167] The Crown further submits that Del Mastro “exceeded his spending limits by almost 20% and he was an experienced politician who was running for re-election as a Member of Parliament.” The Crown points out that Del Mastro, in order to conceal his excessive spending, actively participated in the creation of a false paper trail:

(a) by backdating his personal cheques to a date lying outside of the writ period;

(b) requesting and obtaining a false invoice;

(c) signing and backdating the date of his signature on the false invoice;

(d) signing the false and misleading electoral campaign return that was filed with Elections Canada.

[168] The Crown submits that if Frank Hall had never come forward to report to Elections Canada what had actually occurred, “Del Mastro’s fraudulent attack on the fairness and integrity of the electoral process never would have come to light.” The Crown also submits that Del Mastro’s offences “demanded an exemplary sentence to denounce such deceitful conduct and deter like-minded individuals who might be tempted to engage in similar acts in the future.”

[169] Therefore, the Crown argues that the sentence imposed by the trial judge is too low to adequately reflect the principles of denunciation and deterrence and is manifestly unjust.

Trial Judge’s Reasons

[170] The trial judge provided a detailed and thoughtful consideration of all the sentencing principles in her reasons on sentencing. She observed that within the framework that she was working, “in theory all sentencing options were available”. She noted that the Crown and defence were “quite some distance apart in their positions on sentence being at almost opposite ends of the spectrum.” At trial, as on this appeal, the Crown was seeking 9 to 12 months in jail for Dean Del Mastro; the defence at trial and on appeal, seeks a conditional discharge and/or probation. The trial judge recognized that “the key issue will be whether or not a jail sentence is required.”

[171] The trial judge stated that “an important part of the sentencing equation is the individual before the Court.” She proceeded to detail throughout her reasons a number of mitigating and positive factors relative to Dean Del Mastro:

• He has no prior criminal record;
• He is a first offender as a mature adult;
• He has been a contributing member of his community for many years;
• Letters filed from members of the community indicate that he had an excellent professional reputation and is highly regarded on a personal basis;
• Although as a Member of Parliament, it has been his job to protect and promote his community, it appears that he excelled at it;
• His offending behaviour has resulted in the end of his employment as a Member of Parliament and therefore he has already experienced the consequences of his crime;
• He is married, has a child and has the close support of family and friends in the area;
• His involvement in the prosecution of this matter has been reported extensively in the media, the trial having taken over a year to complete. The publicity, while a consequence of the process, ought not to be ignored by the court in imposing sentence. It has had an impact on Dean Del Mastro and his family;
• The length of the trial, caused by unusual circumstance is another factor taken into consideration.

[172] Balanced against those enumerated factors, the trial judge made findings that related to aggravating factors:

• Dean Del Mastro held public office. He was a sitting MP for re-election to that position of responsibility, power and influence;
• He was an experienced politician, familiar with the rules of campaigning;
• As an MP, he “bore both the honour and obligation of the public’s trust in him.”
• He exceeded the campaign spending limit by about $20,000, “approximately 20 percent of the total allowable expense amount.”
• Because Del Mastro used personal funds to pay for the Holinshed contract for election services, he exceeded his personal election spending limit as well;
• Del Mastro spent too much money and he knew it. The overspending did not come about on the sudden nor did it come about as a result of negligence or mistake;
• The overspending could and should have been avoided. “There was time to reflect and reform.”
• The overspending was accompanied by significant attempts by Del Mastro to hide it by manipulating the election services invoice from Holinshed. “In the throes of the election campaign, he was prepared not only to break the rules, but be deceitful about it during and after the campaign”;
• The overspending was followed by the submission of an election campaign return, which contained false information about campaign spending, using a misleading invoice from Holinshed “to considerably understate the actual election expense.”

[173] The trial judge referenced R. v. Aftergood, 2007 ABPC 122 and the statements therein contained that “the courts have a duty to protect the public from those who would seek to corrupt the electoral process for their own advantage.” Further referencing Aftergood, the trial judge stated:

Potential corruption of the political process has the effect of undermining public confidence in the integrity of our democratic process [and] goes to the heart of our democratic system of government.

[174] Therefore, the trial judge made a finding that what happened in this case was not just “about false documents and unfair advantage in the election.” Rather, the offences “are an affront to the principles of our democratic system and thus must be regarded as quite serious.” She added that “the fact that the impact of overspending is somewhat amorphous, not readily identifiable, does not detract from its seriousness… Cheating is cheating, and in these circumstances, it displays a profound disrespect for the other candidates and the electorate. It is the antithesis of democracy.”

[175] The trial judge therefore found that the nature of all the offences required that the principles of denunciation and general deterrence be given priority in assessing the appropriate sentence.

Analysis

[176] The trial judge, while indicating that the principles of denunciation and deterrence were to be given priority in sentencing Mr. Del Mastro, she nevertheless applied other principles and examined all other sentencing options other than incarceration, recognizing that the “imposition of jail for a first offender” required a strong reason.

[177] The trial judge’s analysis reflect a well-reasoned balancing of all the sentencing principles. In terms of the Crown appeal on sentence, I find no err in law or any reason to interfere with the sentence crafted. While giving due consideration to the seriousness of the offences and the principles of denunciation and general deterrence, nevertheless, the trial judge had the responsibility to weigh in the balance the mitigating and aggravating factors in fashioning an appropriate sentence. The Crown’s appeal of sentence is therefore dismissed.

Del Mastro’s Appeal as to Sentence

[178] The appellant, Mr. Del Mastro appeals the sentence imposed by the trial judge on the basis that:

(a) the total sentence was overly harsh, excessive, without jurisprudential precedence and failed to adequately reflect the provisions of the Canada Elections Act (CEA);

(b) the trial judge overly stressed denunciation and deterrence to the detriment of other sentencing principles;

(c) the trial judge failed to consider the CEA’s code of punishment and how Parliament distinguished between “illegal” and “corrupt” offences and offences that fall into neither of these categories;

(d) that the conviction cannot stand by reason of (i) the trial judge’s failure to articulate the amount of the overspending in her Judgment and (ii) not providing any explanation or analysis for the amount she arrived at as being overspent in the Reasons for Sentence.

[179] Counsel for the appellant, Mr. Adler, both in the factum and in oral argument, maintained that the sentence of the trial judge was in err because one of the main issues has always been: “What is the real value of the election expenses incurred for services provided by Holinshed, as per the Canada Elections Act ?” (Factum on Sentencing para.38).

[180] In effect, Mr. Adler on sentencing, regurgitated the entire “commercial value” argument under the guise of sentencing. This was of no assistance and had no merit in relation to the sentence appeal.

[181] I have sufficiently outlined portions of the reasons of the trial judge above, which I will not repeat again here. Suffice to say that the trial judge found that the offences committed were serious and that Del Mastro “was the main driver of these offences.” The trial judge determined that some custodial imprisonment was required to adequately reflect the principles of denunciation and deterrence and the seriousness of the matter, together with the aggravating circumstances. She also determined that part of the global sentence imposed on Del Mastro could be served in the community.

[182] The trial judge sentenced Dean Del Mastro as follows:

Count #1 (spending in excess of the election expense limit) one month imprisonment and 18 months’ probation;

Count # 2 (exceeding the personal contribution limit) one month imprisonment and 18 months’ probation concurrent to Count # 1;

Count # 3 (filing the false and misleading election campaign return) to a 4 month conditional sentence order consecutive to the other sentences along with 12 months’ probation to run concurrently to the other terms of probation.

[183] The global sentence for Mr. Del Mastro was 5 months (1 month of which was custodial imprisonment and 4 months of which was to be served in the community) and 18 months’ probation.

Analysis

[184] On appellate review, it is well settled law that a sentence imposed by a trial judge may only be interfered with if it is “clearly unreasonable.” (R. v. M.(L), 2008 SCC 31 at para.14). In R. v. Lacasse 2015 SCC 64 at para.11, the Supreme Court of Canada “noted the importance of giving wide latitude to sentencing judges.” The Court held that the trial judge have “inter alia, the advantage of having heard and seen the witnesses” and therefore are in the best position to determine a just and appropriate sentence consistent with the objectives and principles set out in the Criminal Code. “Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”

[185] In R. v. Lacasse (para.12), the Supreme Court stated that proportionality “is the cardinal principle” that must guide appellate courts in considering the fitness of a sentence imposed on an offender:

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task………..both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts.

[186] Therefore, this court should only intervene if the sentence imposed at trial is demonstrably unfit. However, as stated in R. v. Lacasse (para.41), even if there is an “error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor………every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge’s reasoning. If the rule were that strict, its application would undermine the discretion conferred on sentencing judges. It is therefore necessary to avoid a situation in which the term ‘error in principle’ is trivialized.”

[187] R. v. Lacasse (para. 48) also cites Justice Doherty’s decision in R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.) para. 70, where he states:

Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources. The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process.

[188] For the same reasons, “an appellate court may not intervene simply because it would have weighed the relevant factors differently.”[para. 49]

[189] Other principles related to sentencing, as set out by the Supreme Court of Canada in R.v. Lacasse that are relevant to the present matter are:

• Expressions used to describe a sentence such as “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate,” or representing a “substantial and marked departure” (see R. v. Rezaie, 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.)) all reflect the very high threshold that applies to appellate courts when determining whether to intervene after reviewing the fitness of a sentence.[para. 52]
• A fundamental principle is proportionality as stated in s. 718.1 of the Criminal Code. Therefore a sentence will be demonstrably unfit if it constitutes an unreasonable departure from this principle.[para. 53]
• The determination of whether a sentence is fit also requires that the sentencing objectives set out is s. 718 and s.718.2 be taken into account. It is up to the trial judge to properly weigh these various principles and objectives, “whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it is committed.” The principle of parity “is secondary to the fundamental principle of proportionality.”[para. 54]
• The Supreme Court (para. 54) referenced its decision in R. v. M.(C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 para. 92, and explained:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ……..Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

• The principle of parity of sentences means that the deference owed to the sentencing judge is to be shown except if the sentence is demonstrably unfit.[para. 55]

[190] The Supreme Court in R. v. Lacasse states (para. 51) that “the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category. It may intervene only if the sentence the trial judge imposed is demonstrably unfit.” (emphasis added).

[191] Applying these legal principles, I find that the trial judge made no err at law or in principle, nor did she fail to consider a relevant factor or overemphasize the appropriate factors.

[192] The offences that Dean Del Mastro committed “as the main driver” are serious and do strike at the heart of our democratic electoral process. As noted in Harper v. Canada (Attorney General) 2004 SCC 33 (paras. 62 and 72), the election spending limits set out in the Canada Elections Act are aimed at promoting the fairness of elections. Accordingly, electoral spending is regulated through comprehensive election finance provisions, which create a level playing field for those who wish to take part in the electoral process. The wealthy are prevented from controlling the electoral process to the detriment of those who have less economic power. As a result of all candidates being put on an equal footing, no one voice is overwhelmed by another. In the end, this allows voters to be informed and promotes democracy.

[193] Citizens can only enjoy the virtues of a free society with protected rights and freedoms if the democracy functions justly and legitimately. It is difficult to perceive a just and legitimate democracy that lacks a sound electoral system. John Stuart Mill maintained that a well-functioning electoral system is the cornerstone of a democracy, without which a political system can scarcely be said to be a democracy at all. (John Stuart Mill “Consideration on Representative Government” in J. Robson, ed., Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1965-91), 33 vols., as summarized in Brink, David “Mill’s Moral and Political Philosophy,” The Stanford Encyclopedia of Philosophy (Fall 2014 edition), Edward N. Zetta (ed.). However, one does not have to resort to philosophers and theorists for these views. Members of the Canadian House of Commons have expressed similar views in their debates, noting that the goal of any democracy is to make sure no one manipulates the democratic process and acknowledging that such actions would erode public confidence in the democratic fabric of Canada. (House of Commons, 39th Parl., 1st Sess. (7 November 2006) at 1640 (Hon. Rob Nicholson); House of Commons, 39th Parl., 2nd Sess. (13 December 2007) at 1240 (Mario Laframboise).

[194] As a measure to ensure that candidates adhere to the election spending limits, electoral campaign returns must be filed with Elections Canada detailing the contributions received by each candidate’s campaign and the election expenses incurred. Honesty of candidates and their Official Agents is fundamental to the system governing election spending. The accurate completion and filing of electoral campaign returns by candidates is mandatory.

[195] Violations of the election spending limits and deliberate and concerted efforts to evade compliance with the honest and truthful reporting of contributions and expenses, such as occurred in this case, is a serious affront to our democratic system of government and fairness of our election process.

[196] The trial judge’s reasons on sentencing reflect the seriousness of the offences and significantly the participation of Dean Del Mastro in creating a false paper trail by backdating his personal cheque to a date outside of the writ period; requesting and obtaining a false invoice; signing and backdating the date of his signature on the false invoice; and signing the false and misleading electoral campaign return that was filed with Elections Canada. These are all aggravating circumstances which the trial judge properly took into account.

[197] The trial judge equally considered all the mitigating factors as well as the prospects for rehabilitation of Dean Del Mastro. The trial judge correctly instructed herself that there has to be “strong reason to consider the imposition of a jail sentence for a first offender” and consistent with the principles in R. v. Lacasse that “all offenders and first offenders are entitled to the exercise of judicial restraint by the court.” (Reasons pg. 9)

[198] The trial judge considered other alternative sentences, apart from incarceration, and she provided reasons why these alternatives were not appropriate.

[199] I reject the defence submissions that the trial judge erred in her finding that Dean Del Mastro “exceeded the campaign spending limit, by about $20,000, approximately 20 percent of the total allowable expense amount.” (Reasons pg. 6) This finding was clearly available to her on the record. However, she was not required to do an exact mathematical calculation of the “commercial value” of Holinshed services provided. I further find that the CEA is not “its own code of punishment” as suggested by the appellant (factum para 47) and apart from the delineation of multiple offences into categories of illegal, corrupt, and other offences, the CEA does not provide the principles of sentencing. The Criminal Code is paramount and specifically provides the factors and principles of sentencing.

[200] In the result, I find no err and the sentence imposed by the trial judge is not demonstrably unfit. The appeal as to sentence is dismissed.

Restitution

[201] The Crown acknowledged and agreed that it is difficult to demonstrate that the Peterborough District Electoral Association suffered damages. Therefore, the Crown submits that the restitution order is not correct and should be set aside.

Determination

[202] The appeal as against conviction is dismissed. The appeal as to sentence is varied to set aside the restitution order; otherwise the appeal as to sentence is dismissed. Dean Del Mastro shall be taken into custody, immediately, to serve the balance of his sentence.

Justice J. Bryan Shaughnessy

Released: April 5, 2016