RCMP and the Senate: Crazy like a Fox

December 5, 2013

Last month I wrote that the release of the RCMP’s information to obtain (ITO) in relation the the Mike Duffy and Nigel Wright affair was not good news for anyone involved.  

Upon reflection it seems that there is one clear beneficiary – the RCMP.

The release of the ITO disclosed information and communications that are typically inaccessible to the public. This information described the roles of various key players, including the involvement of many of the Prime Minister’s closest advisers, in the plan to repay Sen. Duff’s inappropriate expenses.  The ITO has also cast doubt on many statements made by those same key players, including the Prime Minister himself.  

Release of investigative information of this type, however, is highly unusual.

The question has been asked: why would the RCMP release this information before any charges are laid?

The answer is two fold: principle and investigative strategy.

As a starting point, ITO’s are public documents.  In order to prevent access to the information used to obtain a warrant an court order is required.  A judge may ban publication if the applicant can demonstrate that ends of justice would be subverted by disclosure and that the damage caused by disclosure would outweigh in importance the access to the information.  

This process of ‘sealing’ an ITO is governed by section 487.3 of the Criminal Code:

487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or a production order under section 487.012 or 487.013, or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant, production order or authorization on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would

(i) compromise the identity of a confidential informant,

(ii) compromise the nature and extent of an ongoing investigation,

(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

(iv) prejudice the interests of an innocent person; and

(b) for any other sufficient reason.

From a strictly principled position the RCMP was right not to seek a publication ban.

The public is entitled to view the warrant and the information upon which the warrant has been issued (after the evidence found is brought before a justice: A.G. (Nova Scotia) v. MacIntyre) so long as disclosure would not subvert justice.

The Courts have been clear that sealing orders should only be made when they are necessary to prevent serious risk to the proper administration of justice and when the salutary effects of a publication ban outweigh the deleterious effects (see: Toronto Star Newspapers Ltd. v. Ontario)

In the case of the Senate ITO, disclosure did not compromise informant identity (there were none), nor has it had the effect of compromising the investigation.    

There simply existed little justification for the RCMP to request a sealing order in the first place.

In not seeking a sealing order the RCMP also demonstrated superb tactical judgement.  The disclosure of the information appears to have actually enhanced the RCMP’s investigation.

The release of the ITO generated new evidence from many of the key players – mainly in the form of public statements.  Most notably, the brilliant question period cross-examinations of the Prime Minister Harper by Thomas Mulcair were fueled by the information contained in the ITO.  

All of the statements made in response to the information in the ITO will be essential in the RCMP’s continuing investigation.

Additionally, as a product of the the continued media scrutiny (and related embarrassment) generated by the release of the ITO the Senate has voluntarily agreed to provide the RCMP with even more emails connected to the Wright-Duffy affair.  This voluntary disclosure carries with it the related investigative benefit that individual senators cannot now appeal to parliamentary privileges to prevent the release of those emails.  

Perhaps most importantly, as noted by PostMedia’s Stephen Maher, prior to the release of the ITO the RCMP sought emails from Benjamin Perrin, a lawyer in the Prime Minister’s office.  

As I wrote in November (on this site and for iPolitics) Mr. Perrin seems to have been walking the ethical razor’s edge and his involvement in the Senate affair should raise questions.

The government’s initial response to the RCMP’s request for Mr. Perrin’s emails were that they all had been deleted.  

It was only after the release of the ITO that the government informed the RCMP that they had been wrong and “Mr. Perrin’s emails had in fact been retained due to a litigation hold in an unrelated matter”.

The information released by the RCMP has served to not only generate further evidence but also to compel cooperation.

In releasing the ITO the RCMP acted in principled fashion consistent with the Criminal Code and directions from the courts.

At the same time the release of information was a savvy tactical decision that has generated more evidence than would have otherwise been made available through unprincipled secrecy.

The release of the RCMP information has pointed a glaring spotlight on the actions of those involved in the scandal, leaving no shadows to crawl behind, no dark corners to hide from the scrutiny of the truth.

Exactly – as I suspect – the RCMP planned.