What can we learn from the Ontario Chief Electoral Officer’s Report, made public earlier today, regarding the alleged contraventions made to the Elections Act by local Liberal Gerry Lougheed and the Premier’s Chief of Staff, Pat Sorbara? Certainly, there are the obvious conclusions – that there was a level of interference in the Sudbury by-election which may have contravened the Elections Act and the Election Finances Act. But I’m not going to focus on those matters, as I’m sure that others will be talking about those contraventions over the next few weeks and months.
Instead, I’d like to draw your attention to Page 10 of the Report, in which the Chief Electoral Officer lays out his rationale for concluding that there were apparent contraventions. On Page 10, the Chief Electoral Officer makes references to what a “candidate” is for the purpose of an election. I’ll reproduce that section of the Report here in its entirety.
The meaning of “Candidate”
This complaint relates to conduct in relation to candidates. Section 1 of the Election Act defines a candidate as follows:
“candidate at an election” and “candidate” mean a person elected to serve in the Assembly and a person who is nominated as a candidate at an election or is declared by himself or herself or by others to be a candidate on or after the date of the issue of the writ or after the dissolution or vacancy in consequence of which the writ has been issued.
“election” means an election of a member or members to serve in the Assembly (Emphasis added) A person cannot be properly characterized as a “candidate at an election” prior to the issuance of a writ for election. In the case of an individual who makes a declaration subsequent to a dissolution or vacancy, the definition of “candidate” means the scenario in which a writ “has” already been issued.
The conduct that is prohibited by s. 96.1(e) can take place before the issuance of a writ. For example, a person can contravene s. 96.1(e) by inducing an individual – before an election is even called -- to refrain from being a candidate before a writ is issued. This can be determined by looking at the nature and circumstances of the communications and understandings between the individuals.
In short, the CEO indicates that while Andrew Olivier did not meet the definition of a “candidate”, a contravention to the Act still might have occurred if he was bribed to step aside before the writ was issued.
And that, I fear, is where the Chief Electoral Officer’s rationale for an apparent contravention having occurred breaks down. If Olivier wasn’t a candidate – and could not have become a candidate in any circumstances – where is the apparent contravention?
Was Olivier a Candidate?
Andrew Olivier was never a candidate. While he had announced his intention to seek the Liberal Party’s nomination after the Sudbury riding was declared vacant, the Liberal Party never opened its nomination process. In fact, there was no nomination to be had. Instead of a nomination process, the Premier eventually appointed a candidate. So not only was Olivier not an election candidate at the time of the alleged contravention having occurred, he was not a nomination contestant either – because there was no nomination to be had.
A declaration of interest in seeking the Liberal Party’s nomination does not make one a nomination contestant. The Liberal Party of Ontario, like all mature political parties in Canada, has a process to follow to become a nomination contest. That process includes an up-front screening of a potential candidate based on the submission of an application. Only after a nomination contestant has been “greenlighted” by the Party can they be considered a nomination contestant.
And even had this situation occurred, it would not have made Olivier a “candidate” as per the legislation – at least not until the writ was dropped.
If You Can't be the Candidate, You Can't Be Bribed to Not Be the Candidate
Although as per the CEO’s interpretation of Section 96.1(e), that a contravention can occur pre-writ, if an individual receives an inducement to not be a candidate, the fact of the matter here is that Olivier, despite his public statement that he was seeking the nomination, there was never a nomination in play which he could have sought.
Remember: both Gerry Lougheed and Pat Sorbara were equivocal about this: the Premier could use her authority to appoint a candidate, so there would be no nomination contest (Lougheed said that it was the Premier's preference to have a contest - one apparently ending with an acclamation for Glenn Thibeault - Sorbara was clearer: that a decision about an appointment was going to have to be made by the Premier). Therefore, knowing that there was no nomination contest on the table or underway at the time of their conversations with Olivier, they were unable to offer Olivier an inducement to stop seeking the candidacy, because there was no candidacy to be sought at that time. Both would have preferred that Olivier and Matichuk stepped back from seeking the nomination, and that a rigged "contest" starring just one contestant could have been held (with Olivier playing game-show host MC leading the call for Glenn's "nomination"). But with Glenn in the game now, they knew he could not face an actual contested nomination (likely because there was no way he was going to be able to sell more memberships than Olivier - but I'm speculating here). Since a contested nomination wasn't in the cards, from their perspective, they couldn't have made an offer to Olivier to induce him to stop seeking the nomination - they knew it wasn't going to happen.
I think that the Chief Electoral Officer may have erred in judgement here. Now before everybody goes ballistic on me for this, let me be clear: I believe that what Olivier was offered by Lougheed and Sorbara was tantamount to a bribe – but it was a bribe to keep quiet, not a bribe to stop him from seeking office. The decision had been made by the Premier prior to these conversations that neither Olivier or Marianne Matichuk were going to be able to become the Ontario Liberal Party’s candidate for the Sudbury riding, because the Premier was going to appoint someone else.
I’m not sure where that leaves the criminal proceedings, but as far as the Elections Act goes, I just can’t see how offering a job to someone who can’t be a candidate is in any way, shape or form an inducement to that individual to refrain from seeking the candidacy.
Again, this isn’t to justify the actions of Lougheed and Sorbara – nor is to cast aspersion on Andrew Olivier. Olivier didn’t file the complaints with Elections Ontario or with the police. He hasn’t done anything wrong here. If Lougheed and Sorbara are eventually vindicated for the reasons I’ve identified or for other reasons, that can in no way taint Olivier – unless additional information comes to light that we don’t know about right now. And that doesn’t seem likely.
All that I’m suggesting is that I see some wiggle room here for the implicated Liberals. I'm not a lawyer - but if I can see it, I suspect it will be seen by Lougheed’s and Sorbara’s legal counsel. They'll make a case that you can’t bribe someone to refrain from seeking a position which they could never have attained.
You can't be bribed to not be the candidate if you never could have been the candidate in the first place.
(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)
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