Mr. Speaker, I rise today on a question of privilege.
This is the first opportunity I have had to do so since the member for Avalon asked a question yesterday, where he stated:
It has been one year since the member for Peterborough dared to show up to an ethics committee because of his unethical and illegal returns....
Over the past several months, there have been charges made against my character, which have served to impact on my functions as a member of this place, charges that I entirely reject.
I had hoped that the most recent report of the Chief Electoral Officer would set these allegations aside, exonerating me of any allegations, but it was instead silent on the matter.
On March 22, 1983, Speaker Jeanne Sauvé ruled that there was in fact a prima facie question of privilege with respect to allegations brought against the hon. member for Lincoln, Mr. Bryce Mackasey by the Montreal Gazette.
In reaching her conclusion, Speaker Sauvé determined that:
Not only do defamatory allegations about Members place the entire institution of Parliament under a cloud, they also prevent Members from performing their duties as long as the matter remains unresolved, since, as one authority states, such allegations bring Members into “hatred, contempt or ridicule”. Moreover authorities and precedents agree that even though a Member can “seek remedy in the courts, he cannot function effectively as a Member while the slur upon his reputation remains.” Since there is no way of knowing how long litigation would take, the Member must be allowed to re-establish his reputation as speedily as possible by referring the matter to the Standing Committee on Privileges and Elections.
I can attest that since Wednesday, June 6, 2012, I have been subjected to unfounded hatred, contempt and ridicule as the result of a leaked document belonging to Elections Canada. It was on that day that I was first contacted by a Hill reporter seeking comment on the Elections Canada investigation into my 2008 campaign filing.
The reporter in question had in his possession a sealed court document related to an ex parte proceeding that was entirely unknown to me, and it contained allegations and statements that I categorically deny.
Despite the fact that this reporter had this complete document, nobody else, not even I or my lawyer, was able to obtain a copy. Indeed, dozens of reporters, including CBC's Laura Payton were having the same problem as I was. This was a leaked document, not obtained through lawful public means. It should have only been in the possession of Elections Canada at that point in time.
The obvious question I had at the time was whether it was true. What was going on? Why did a reporter know about this before I did?
I believe this is a question of importance for all members of this place, given that the functions I perform on behalf of my constituents require that my privilege as a member of this place be upheld. As an agency of Parliament, Elections Canada has specific responsibilities that it must maintain, responsibilities I would argue it has failed to keep.
I would think any reasonable Canadian and, indeed, any member of this place would expect that when allegations are brought against them, they would be given an opportunity to respond to them before any legal proceedings or court options are undertaken. However, this was sadly not the case.
Certainly one would think that, with these rumours and accusations that were circulating in the press, I would have heard from Elections Canada but, again, even my calls to it seeking clarification went unreturned. This continued even as more false allegations were being leaked and then ultimately officially released. Indeed, it would not even confirm to me whether or not there was an investigation.
On Wednesday, June 13, my lawyer sent a letter electronically to Elections Canada. In the letter he made it clear I was seeking to have a meeting with Elections Canada to discuss any questions or concerns it might have and to address specific allegations that had been made by a single party with a motive.
Additionally, we requested that, prior to Elections Canada presenting any additional information, we be given notice and an opportunity to be present for my input and the opportunity to answer questions at the same time. Quite simply, I wanted to talk to them and I wanted them to make me aware of any other statements or proceedings before they were made public.
No member of this place should have to learn details about themselves from the press, as I did beginning on June 6. These serve to incapacitate members in their duty and responsibility to the tens of thousands that each of us represents in this place.
Sadly, once again, on the evening of June 14 I was contacted by the same journalist who had obtained the original leaked sealed document and was informed that he was in possession of an Elections Canada return to the Information to Obtain order, and he was once again asking questions related to allegations of which I had no knowledge.
I read in the press that my personal banking records had been sought, and that a document included in our audited return was unexplained by the person who had brought these allegations against me in the first place. These brought new allegations of forged or false documents in the return, allegations based on assertions made by the Elections Canada investigator, which I would later tell him were absolutely preposterous.
Upon learning these details, I was shocked. I felt violated, and it was clear that Elections Canada acted upon the allegations of a single person with malice and contempt toward me and my family. These ex parte statements and actions, which is Latin for one side only, were and continue to be hurtful, but I believe they achieved the objective they were seeking, which was to create a media firestorm. How does a member of this place respond when others are in possession of ex parte allegations and actions and he or she has no knowledge, none whatsoever, that they have taken place?
On Friday, June 15, nine days after I was initially contacted by a member of the press, I was able to obtain a copy of these now public documents. For the first time I had an opportunity to read what was actually being alleged and what actions had been taken against me. What struck me is that, throughout these ex parte statements, there was no attempt to provide full and frank disclosure of all of the material facts related to the investigation. Certainly, there are many statements and erroneous conclusions, but where is the legal obligation, as stated by the Supreme Court of Canada, to be transparent and complete and to provide all material facts before the court?
I believe these actions firmly represent a violation of my rights under section 8 of the Charter of Rights and Freedoms. The justice of the peace, prior to making a decision to issue production orders, including for my own personal financial records, had the right to know all of the details the investigator had learned, and the investigator had the legal obligation to provide them, according to the Supreme Court of Canada, but he did not.
I quote Supreme Court precedence. An analysis of the principles on which Hunter et al. v. Southam Inc. was based shows that:
The exercise of a judicial discretion in the decision to grant or withhold authorization for a warrant of search was fundamental to the scheme of prior authorization...
—which Dickson prescribed as “an indispensable requirement for compliance with s. 8” in that case.
The decision to grant or withhold the warrant requires the balancing of two interests: that of the individual to be free of intrusions of the state and that of the state to intrude on the privacy of the individual for the purpose of law enforcement. The circumstances on which these conflicting interests must be balanced will vary greatly.... In order to take account of the various factors affecting the balancing of the two interests, the authorizing judge must be empowered to consider all the circumstances.
Additionally, the following propositions have been accepted by the Supreme Court in R. v. Debot and R. v. Greffe. First, hearsay statements of an informant can provide reasonable and probable grounds to justify a search; however, evidence of a “tip” from an informer, by itself, is insufficient to establish reasonable and probable grounds. Second, the reliability of the tip is to be assessed by recourse to the “totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including the degree of detail of the tip; the informer's source of knowledge; and indicia of the informer's reliability such as past performance or confirmation from other investigative sources. Third, the result of the search cannot, ex post facto, provide evidence of reliability of the information.
In the 2010 case of R. v. Morelli, the Supreme Court of Canada stated:
In reviewing the sufficiency of a warrant application...“the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued”....
In this case, the information to obtain included erroneous statements and omissions that violated the legal obligation to make full and frank disclosure of material facts. I assert that, had full and frank disclosure been provided and had the Elections Canada investigator met his obligation under the law regarding ex parte proceedings, then no such court orders would have been granted. To cite precedence, the judge in this matter was clearly not empowered by the statement of the investigator under oath to consider all of the circumstances or, at the very least, full disclosure about who was making these allegations about me and why.
The presiding justice had the right to know and the investigator had the legal obligation to disclose to him that the allegations were being brought by an individual who had brought legal proceedings against me in civil court and that these proceedings were dismissed. He further should have been told that the very same investigator, who swore the oath that all facts were known to the case before him, had in fact spoken to me in person whereby he assured me that they were simply undertaking a routine review and indicated that, should they have any further questions or concerns, they would contact me.
In fact, I made two things clear to Thomas Ritchie during that November 2011 phone conversation: first, that if he had any questions regarding my 2008 campaign, I would happily meet with him; and, second, that I would provide any documentation that he may wish to review.
Sadly, if one reads the court documents, one can see they fail to indicate that the conversation between them and me took place or that I offered my full co-operation. The failure to disclose these critical details represents a serious violation of the legal obligations on Elections Canada to be full and frank in its disclosure to the courts in seeking a warrant.
Given that the justice was being asked to override the section 8 charter rights of a member of Parliament based on the allegations of one person, it is inconceivable that the presiding justice in this matter would not have asked the investigator quite simply, “What do we know about Frank Hall?” He is the person who has levelled all of these allegations against me.
Had Elections Canada considered this question, it would have found some concerning details, facts that I was able to assemble in a matter of a couple of hours, facts that are in some cases public record, facts that I provided to Elections Canada for its consideration many months ago.
Elections Canada could have and should have researched these facts, and they were required to be included in the full and frank disclosure before the court.
In ex parte or one-sided proceedings, the justice places trust in the investigator, in this case the Elections Canada investigator, who has sworn an oath before him that all the facts related to the investigation are before him.
Clearly, Mr. Speaker, when you read the submission, you will note that you cannot find anything that demonstrates that contradictory accounts were in the possession of the investigator. Perhaps even more important, as a result you will not learn that I stand accused by a person who has admitted to falsifying records and reports, has failed to deliver on contracts time and time again, and has been involved in other civil disputes with public officials.
I feel violated and betrayed by an agency in which I and every other member of this place, indeed in which all Canadians, must place their trust. As I indicated earlier, I feel strongly that this process has been conducted with malice and contempt for me as a member and for my family's well-being. I cannot describe the pain that this unnecessary and contemptuous process has put those closest to me through, my wife Kelly, my mother, my three brothers in business, all in Peterborough, and their families.
Why, Mr. Speaker? Why? Ultimately I am alleged to have donated too much money to myself and to have used those funds to exceed my campaign spending limit. These are allegations that I outright and completely reject.
Elections Canada has been in possession of evidence that I have provided to it freely since last summer which very clearly demonstrates I did not exceed my personal donation limit, that I did in fact adhere to my election spending limit and that all public declarations related to my campaign are entirely accurate.
Sadly, as opposed to acting on this information and dropping the investigation, select details of that meeting were instead leaked to further provoke the press to attack me. The story which ran on September 19, 2012 states that I “vigorously asserted my innocence”, which is absolutely true and accurate, but the details of the meeting, in fact even that there was a meeting, were only known by Elections Canada. I ask you, Mr. Speaker, how else, other than through a leak directly from Elections Canada, could they have known these details?
Mr. Speaker, I ask you, are the actions that have been undertaken, these extreme actions by Elections Canada that I have outlined, against a member of this place, appropriate? Are leaks to the press how members should expect to learn of allegations or actions brought against them by an agency of this place? Does Elections Canada not have a moral if not an ethical responsibility to at least speak to a member and seek clarification before it goes to court seeking an order to obtain information that would have been freely provided to it? Is Elections Canada not responsible to uphold its responsibility in law as dictated by the Supreme Court of Canada and provide a full and frank disclosure in ex parte proceedings concerning members of this place?
Mr. Speaker, in considering this question of privilege, I again refer you to the findings of Speaker Sauvé, who on March 22, 1983 stated:
...it is clear to me that while the Hon. Member could seek a remedy in the courts, he cannot function effectively as a Member while this slur upon his reputation remains. The process of litigation would probably be very lengthy and there is no knowing how long it would take before the issue was finally resolved.
Mr. Speaker, I believe firmly that it is in the interest of each and every member of this place that you find the actions that I have outlined do constitute a prima facie question of privilege, at which time I will move that the matter be referred to the Standing committee on Procedure and House Affairs. I want to assure members that I will answer any questions they may have related to my 2008 campaign at that time.
What has happened to me could happen to any member of this place unless we take action today to ensure that it stops.
Unless we take action to ensure that each and every person in this place is afforded the basic respect, process and rights that we all swore to uphold for each and every one of the people we collectively represent in this great country, my fear is that this will once again play out in the not too distant future and another member will find himself or herself a victim in the process I have just described.
We must draw a line in the sand here on a matter that transcends party affiliation and state clearly and collectively that members of this place are entitled to equal, fair and unbiased treatment, treatment without prejudice and in keeping with the laws of this land, and when we clearly do not receive that treatment, that a finding of violation against the privilege of a member is found and declared.
