Expensive, pointless and interminable
Last Wednesday, Springwater Mayor Don Allen and Chief Administrative Officer Robert Brindley updated township council on the municipality’s legal position with regard to the investigation and prosecution of former mayor Bill French’s 2014 campaign expenses.
The mayor and CAO provided answers to the question that many people have been asking, namely whether the municipality can do anything to extract itself from a case that has assumed Dickensian proportions, this prosecution under the Provincial Offences Act prompting references to the fictional suit (Jarndyce v Jarndyce in Bleak House) that became a byword for expensive, pointless and interminable legal proceedings.
The answers came in the form of a Q and A between the mayor and the CAO, with the mayor’s series of leading questions touching on the following points (some taken from a report on this website of statements made by French lawyer Phil Horgan, answering questions from a crowd outside the courtroom following pre-trial discussions on March 28):
Allen “I’m correct in saying that the township never instigated anything with respect to this matter, is that correct, CAO Brindley?”
Brindley “Mr. Mayor, that is correct, the original essentially file brought in to the compliance audit committee was from a private citizen, and since then the committee has operated as the committee does and essentially with the fullness of time going through the compliance audit and then now the prosecution.”
Allen “This was a process instigated by the Municipal Elections Act which has legislation that’s come into play since I believe 2009, you have the date, to enable an independent selected compliance audit committee to review expenses of members who run for office should there be an application by an applicant which in this case there was one, is that correct?”
Brindley “Yes, that is correct.”
Allen “We have no input or no control over the actions or the payment with respect to this process, is that correct?”
Brindley “That is correct, mayor.”
Allen “The next question, is the township obligated to carry on funding in this case? And the response of Mr Horgan was, quote ‘the township’s lawyer expects to be paid. It is up to the township to decide whether it needs to proceed, for example it could stand down if they think it’s a frivolous case.’ Do you have any thoughts with respect to that quote, CAO Brindley?”
Brindley “Mr Mayor, once the process is designed to be severed from council so the whole process of the compliance audit committee and therefore the prosecution afterwards has no contact (with) council so council has no way or means of even instructing the lawyer, the lawyer acts independently.”
Allen “And this is not the first time we’ve made that point, or that point’s been made with respect to this. So I hope those listening realize, we have not influenced nor can we influence this going forward, it has to take its course but we’re certainly anxious to get settlement in the end of the costs in this process as soon as possible.”
So, according to the mayor and the CAO, we really do have a prosecutor who answers to no one but whose bills Springwater ratepayers are obliged to pay (if there’s been an invoice from Kingston lawyer Tony Fleming, who was appointed last June, it has not yet been made public. So brace yourselves).
This is a runaway train, with no one – apart from Fleming, who has an interest – able to consider whether it is reasonable or proportional to spend $310,000 so far, and counting, for “infractions” that added up to $1,091, when French was $5,000 under his spending limit.
All of which adds weight to the petition started by the Justice for Bill French committee (of which I am a member) that calls on the province to review the Municipal Elections Act. This petition also asks Springwater council to do whatever it considers appropriate to end the prosecution of Mr. French.
We now have the answer, at least from the mayor and the CAO, that there is no appropriate action to be taken.
There are those who tell me that as this was a legal matter it should have been discussed behind closed doors. As a citizen, I disagree. There are often times when council’s motivations and rationale for or in defence of legal action are of public interest and it is appropriate for the matter to be discussed in public. This was such a case.
There was a problem, however. Brindley and Allen’s answers followed an astonishingly incomplete and misleading verbal report to council by Brindley, a summary of the case so far. I understand the former mayor plans to release a statement on this matter and await that with interest.
Suffice it to say that I’m glad the report wasn’t in camera, because it may be an indication of what has been going on for years in the closed session meetings of council – from which then mayor French recused himself.
In fact, Brindley actually pronounced the former mayor guilty in his update to councillors: “A second audit was done and it was determined that again Mr. French had contravened the Municipal Elections Act and there were a number of areas in which that had occurred,” he said.
This echoes a mis-statement from compliance audit committee chair Robert Barlow at the committee’s May 25 2018 hearing. “I would assume from your report they are contraventions of the act, correct?” Barlow asked auditor Ken Froese regarding his report of the actions in which French is now charged.
“They are apparent contraventions of the act,” Froese corrected him.
There’s a concept in Canadian justice that an accused person is presumed innocent until and unless he or she is found guilty by a court.
There’s a concept that people should abstain from public comments regarding the guilt of an accused so as not to prejudice his or her right to a fair trial.
And there’s a concept that publishers refrain from spreading comments that are prejudicial. The Township of Springwater has a website, and has published Brindley’s comments – anyone can access them through the livestream of the April 3 2018 council meeting.
The Justice for Bill French committee has published a list of the 10 charges against French. They are based on five apparent non-compliances:
-He did not declare some volunteer work on his campaign website, valued at $500. French is contesting this charge because the Municipal Elections Act provides that voluntary unpaid labour is NOT a contribution and does not have to be reported.
-He misplaced a $300 invoice, which he then declared.
-He failed to declared the use of some borrowed used stakes, valued at $93.75 to $131.25.
-He accepted – and declared – four $50 donations in cash. The limit for cash donations is $25.
-His campaign financial officer – his wife, Lorraine – paid some expenses from her credit card (they were correctly declared in the financial statement), which is permitted, but the credit card payments should have been reimbursed to her as they occurred, on an ongoing basis, from the campaign account, rather than at the end of the campaign.
It should be noted that the Municipal Elections Act allows for a situation in which “the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment.”
Nevertheless the compliance audit committee – Robert Barlow, Colin McLarty and George Wodoslawsky – spent almost four years pursuing French for these alleged offences. They didn’t like the first $12,860 audit, so they ordered another one that cost ratepayers $64,075. The second audit found that the amount involved in the apparent non-compliances was lower than the first – $1,091 compared to $1,175.
They appointed Fleming and instructed him to proceed. The committee’s mandate expired last year. Fleming carries on under his own steam, thanks to Springwater ratepayers.