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- By the Order in Council dated February 19, 2004, I am authorized to recommend funding to a party who has been granted standing at the Inquiry.
- The relevant paragraph reads as follows:
- (h) for purposes of the investigation referred to in paragraph (a), the Commissioner be authorized to recommend funding, in accordance with approved guidelines respecting rates of remuneration and reimbursement and the assessment of accounts, to a party who has been granted standing at the inquiry, to the extent of the party's interest, where in the Commissioner's view the party would not otherwise be able to participate in the inquiry;
- Subsequently the Treasury Board approved funding guidelines which may be found on the Commission's website.
- In the Rules of Practice and Procedure which have been adopted by the Commission, the criteria for an application for funding are set out in Rule 11, which reads:
- In order to qualify for a funding recommendation, a party must:
- establish the party's inability to participate in the Inquiry without funding and the absence of an alternative means of funding:
- provide a satisfactory plan as to how it intends to use the funds and account for them;
- demonstrate sufficient interest and proposed involvement in the Inquiry; and
- establish a special expertise or experience with respect to the Commission's mandate.
Of the fifteen persons and organizations that have been granted either party or intervenor standing at Phases 1A and 1B of the Inquiry, three have submitted applications for funding, or, should I say more accurately, applications for a recommendation for funding, since the Order in Council makes it clear that my authority is limited to making a recommendation.
- The three applicants are Mr. Joseph Charles Guité, the Conservative Party of Canada, and the Bloc Québécois.
- Joseph Charles Guité
- Mr. Guité alleges in his application that he has already been exposed to substantial expense for legal representation before the House of Commons Public Accounts Committee as well as before the criminal courts, where he is facing accusations directly related to the role he played in the administration of the sponsorship program. His participation in the Inquiry as a Party will involve him in further legal costs and disbursements. He acknowledges that in virtue of his status as a former public servant, some of the fees of his personal attorney who appeared with him before the Public Accounts Committee have been supported by the government in accordance with the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants ("Treasury Board Policy"), but in his application he says that he has not yet received confirmation from the Department of Public Works and Government Services Canada that this same policy will apply to the services of his attorneys before the present Inquiry.
- Mr. Guité refers in his application to considerable legal expense involved in defending the criminal charges of which he has been accused, but this is not a relevant consideration in the present context.
- With reference to his financial circumstances and his ability to participate in the Inquiry without government funding, Mr. Guité alleges, somewhat laconically, that "a significant portion, if not all of my liquid assets, are being expended on the retaining of legal counsel to represent me, on the criminal charges before the Quebec Superior Court of Justice," and that "my personal and financial circumstances are such that I do not have the financial resources available to retain legal counsel to represent my interests" before the Inquiry. A more detailed description of his "personal and financial circumstances" would have been advisable, to enable me to assess Mr. Guité's ability or inability, as the case may be, to pay his lawyer.
- Be that as it may, it is almost certain that his legal expenses before the Inquiry will be met, as they have been previously with respect to his representation before the Public Accounts Committee, in accordance with Treasury Board Policy. If for some reason they are not, I recommend that they be funded in accordance with the Treasury Board guidelines.
- The Conservative Party of Canada
- The Conservative Party of Canada has been granted the standing of an Intervenor before the Inquiry. Its application for a funding recommendation states that it has limited revenues consisting of an allowance allocated to it pursuant to sections 435.01 and 435.02 of the Elections Act,and the donations it receives from its supporters. The latter are, by the effect of recent amendments to the Elections Act and the Income Tax Act, now restricted to a maximum of $5,000.00 per year from any one person; donations or contributions from corporations and trade unions are prohibited. According to its application, the budget of the Conservative Party of Canada is entirely used to cover its expenses to run its national operations and to support the election campaign expenses of its candidates. It did not, in its 2004 budget, make any provision for the expense of participating in the Inquiry, which arose after the beginning of the year. It will receive no further allocation in accordance with the Elections Act until January 2005. It says that contributions from its supporters tend to diminish after an election.
- The application does not identify the amount allocated from government funds to the Conservative Party of Canada in 2004, but as appears from a press release dated December 11, 2003 issued by the Chief Electoral Officer of Canada, attached as Appendix A, the Conservative Party of Canada received at the beginning of 2004 the sum of $8,476,872.25. This amount is subject to revision based upon the number of valid votes cast in its favour in the 38th general election held on June 28, 2004, but should not be significantly different in the future. Accordingly, starting in January 2005, the Conservative Party will be entitled to receive quarterly instalments of more than $2 million each.
- Notwithstanding these very considerable resources, the applicant asserts that it is unable to participate in the Inquiry without funding, because its budget is entirely committed to its regular political activities. It seeks funding only to the extent necessary to a limited participation in the Inquiry, which it describes in detail in its application. It alleges that without such funding, it will be unable to participate in the Inquiry as an Intervenor.
- The foregoing has led me to reflect upon whether it is reasonable and appropriate to require a political party to rely upon the funds allocated to it by reason of ss. 435.01 and 435.02 of the Elections Act for the purposes of its legal representation before a commission of inquiry. After careful consideration I have come to the conclusion that I should not impose such a requirement upon the applicant.
- As its title indicates, the main purpose of the Elections Act is to regulate elections. It may therefore be assumed that the recent amendments to the Elections Act that provide for public financing of political parties anticipate that the funds so provided from public sources will be primarily used by political parties so as to promote the possibility that some of their candidates will be elected to Parliament in a general election. It may also be assumed that they do not foresee that those funds will be used for non electoral and non political purposes such as the participation of a political party in the work of a commission of inquiry.
- The Commission intends to ask the Conservative Party of Canada to refrain from promoting its political objectives in its submissions to the Inquiry; this should be apparent from its Ruling on standing. It would therefore be contradictory and unfair to require it to use its financial resources, provided under the Elections Act, normally dedicated to political purposes, to pay its lawyers for their services related to the work of the Inquiry.
- It is this contradiction that has persuaded me to exercise my discretion to recommend limited funding to the applicant, generally but not entirely in accordance with its Plan for Use and Accounting which forms part of its Submissions, and which is attached as Appendix B. Accordingly:
- funding is recommended for one junior and one senior lawyer, to work separately, the bulk of the work to be performed by the junior lawyer, under supervision by the senior lawyer who will make decisions and present closing submissions to the Inquiry;
- funding is recommended for pre-hearing preparation limited to 40 hours of work for each lawyer, and for suggestions from time to time to Commission counsel and related representatives limited to 40 hours of work by the senior lawyer;
- funding is recommended for review of daily transcripts and documents limited to three hours per day by the junior lawyer and one hour per day by the senior lawyer;
- funding is recommended for necessary expenses and travel, it being taken for granted that in most instances the applicant's lawyers will not have to incur costs for copies of documents or transcripts, and will not need to travel to Ottawa or Montreal to take cognizance of exhibits;
- funding is recommended for the preparation and presentation of closing submissions limited to 30 hours for each lawyer.
I will remain open to the possibility of amending these recommendations as circumstances dictate, on application.
- Bloc Québécois
- With respect to the application of the Bloc Québécois, it alleges that it intends to participate actively in the Inquiry. For example, it proposes to have an attorney present at the hearing at all times, whereas the Conservative Party would be satisfied to take cognizance of the daily transcripts, and does not propose to have a legal representative present throughout the hearing. The need for the Bloc Québécois to be present at all times at the hearing of witnesses is not established to my satisfaction.
- With respect to its financial resources, the Bloc Québécois makes little attempt in its application to describe in detail its situation. It says only that its financial resources are used in connection with its regular political activities, and that no provision has been made for extraordinary costs such as those related to the Inquiry.
- Its application for funding makes no mention of the amounts allocated and to be allocated to the Bloc Québécois as a result of the recent amendments to the Elections Act. According to Appendix A, it received in 2004 the sum of $2,411,022.25, and it may be assumed that it received additional donations from its own supporters. As a result of its success in the recent election, it will be receiving a greater allocation in the future than it received in 2004.
- Nonetheless, the application alleges in paragraphs 7 and 8:
- Les ressources financières dont dispose le Bloc Québécois ne permettent donc pas de couvrir des dépenses liées à de quelconques activités extraordinaires telle qu'une participation à une commission d'enquête. Aucune somme n'a donc été prévue et n'est disponible pour ce faire.
- Dans les circonstances, il est clair que le Bloc Québécois est et sera incapable d'acquitter les sommes nécessaires à sa participation à la Commission d'enquête. Il n'est d'ailleurs pas en mesure d'obtenir de tels fonds, dont la somme est considérable, par d'autres sources de financement. L'assistance financière fournie par le gouvernement est donc essentielle à sa présence dans le cadre de l'enquête factuelle et des représentations finales qui suivent celle-ci.
These submissions and the considerations that have led me to conclude that the Conservative Party of Canada is entitled to public funding for the services of its attorneys in relation to the work of the Commission persuade me that the Bloc Québécois is equally entitled to a recommendation for funding. However, I am not persuaded that it deserves more generous funding than what I recommend for the Conservative Party. Accordingly, I exercise my discretion to recommend funding to the Bloc Québécois, but only to the same extent that it is recommended for the Conservative Party of Canada. If the Bloc Québécois chooses to instruct its attorneys to participate in the Inquiry to a greater extent, it will have to finance any additional legal costs so incurred from its own resources.
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John H. Gomery, Commissioner
Dated at Montreal July 19, 2004 |
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