Could Stephen Harper go to prison?

Introduction:

I think my partisan affiliations are pretty well known by those in the blogging community that already know me, and are already posted on this blog, but given the important nature of what I want to write about in today’s post, I feel morally bound to declare that I am writing from a position of bias. I am a member of the Liberal Party of Canada, I have worked on Parliament Hill for a liberal MP, and have volunteered to help liberal candidates campaign at both the federal and provincial levels. I have also left comments on other people’s blogs in which I state that I believe Stephen Harper to be guilty of an offence under Section 119 of the Criminal Code. I think that sums it up pretty clearly.
Now that we have gotten that out of the way, I will do my best to perform an objective legal analysis of the case. Because I come from a position of bias, I have decided to write this post kind of as if I was writing a legal memo to the assistant crown attorney who was in charge of prosecuting this case. Just the same, I will also try to write this post so that anyone without a legal education can understand it.
Criminal law is one of my favourite domains of law. As a third year law student, I look forward to someday practicing in this area of law, and for this reason I’ve made a point of taking as many classes that relate to criminal law as possible. As such, I’d like to take the occasion to analyze the evidence and the facts that have come out during the whole Cadman scandal, to ultimately determine whether or not criminal charges could be brought against Canadian Prime Minister Stephen Harper.
It should be noted that any evidence or facts referred to in this post are drawn entirely from reports published by the media. We don’t know what other evidence for or against the Prime Minister may be in the hands of the RCMP officers that are currently investigating the matter, nor do we know what other evidence has yet to be uncovered.

*****************************************************

The facts:
A few weeks ago, a biography of the late Chuck Cadman, a former Reform, Canadian Alliance, and Independent MP was released. According to the book, shortly before he died, Cadman revealed to his wife Dona (who is a candidate for the Conservative party in her husband’s former riding of Surrey North, B.C.) that members of the Conservative Party had offered him a one million dollar life insurance policy, in exchange for voting to bring down the Martin government by voting against a budget bill on May 19th of 2005. These claims were later backed up by Cadman’s daughter and son-in-law. Cadman rejected the alleged offer and the Martin government survived for a few more months.
The whole thing would not likely have gone any further except that the book’s author, Tom Zytaruk, also produced a tape of a recorded conversation between himself and Prime Minister Stephen Harper, in which the PM admitted to having had knowledge of an offer for “financial considerations”. I found a portion of the transcript of the tape online here. Shortly after that, another tape surfaced, in which Chuck Cadman himself was giving an interview for a radio show and stated that the Conservatives made him a financial offer of some kind (See the full story here).

Admissibility of evidence:

Let’s start with the alleged statement made by Mr. Cadman to his wife. In order to determine that evidence is admissible, it must first be proven to be relevant to the matter at hand. There is no doubt that the alleged statement would be relevant in a trial against the two Conservative Party officials, who are accused of having delivered the offer to Mr. Cadman, but Prime Minister Harper is not directly implicated by this evidence, there may be some question as to whether or not it can be used against him because it does not prove that he had knowledge of the alleged offer. If all three are being tried at once, this won’t be a problem, but the defence is almost certain to request that the trials be severed for exactly this reason, and they are likely to get it, so I will assume as much. The Crown could counter the defence’s argument by reminding the court that the tape proves beyond a doubt that the PM knew of an offer, and the only purpose of the statements are to prove the details of that offer.
Assuming that the Crown is able to convince the court that this evidence is relevant, they will also have to overcome the fact that this is a textbook example of hearsay evidence. The general rule is that hearsay evidence must be excluded, but this is not a strict rule. Hearsay evidence can either be admitted through one of the existing exceptions that have been recognized by the courts over the years, or on a case-by-case basis according to necessity and reliability (See: R.v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.)). The only existing exception that even comes close to this case is that of the dying declaration, but this is limited to statements made regarding the circumstances that lead to the person who allegedly made the declaration’s death (For example: If A tells B that he was shot in the chest by C, then B can testify to this in court). That is not the case in this matter.

So if the Crown wants to use the testimony of Mr Cadman’s family, they will have to satisfy the court that this evidence meets the necessity and reliability test. I think that the hearsay evidence in this case has a good chance of meeting the criteria for necessity. The Supreme Court, in R. v. Smith, listed the unavailability of the person who allegedly made the statement in question due to their having either gone missing or died as one of the possible factors that could be used in determining whether or not hearsay evidence is necessary. It is also important to take into account that a trial judge has a lot of discretion based on the facts of each individual case to determine whether or not the hearsay evidence is necessary (See: R. v. Parrott). In this case, the tape of Stephen Harper’s voice is a double edged sword, because the presence of other strong evidence means that the hearsay evidence may not be necessary, however the defence cannot really make this argument without conceding that the statements made by Harper put him on the hook.
As far as reliability of the hearsay evidence in this case is concerned, the court can consider just about anything, such as any factors that could negate the accuracy of the alleged statement, and whether there are any substitutes that might make up for the fact that it was not made under oath, and that the accused could not cross-examine the person who is alleged to have made the statement. This aspect of the test is going to be much trickier for the Crown. The defence may raise the argument that because the statements allegedly occurred shortly before Mr. Cadman died of cancer, a time in which he would very likely have been suffering a great deal, he may have been on heavy doses of painkillers. It’s not clear what kind of effect this might have had on his ability to recall the alleged bribery offer. If the Crown is to have any chance of introducing this evidence they will have to demonstrate that Mr. Cadman was of sound mind when he is alleged to have made these statements. As for the lack of oath or cross-examination, the Crown could argue that Mr. Cadman was near death when he is alleged to have made the statements in question, and had absolutely no reason to lie. Furthermore, as a candidate for the Conservative Party of Canada, Dona Cadman has every reason in the world not to want to make up stories that could incriminate members of her party. All in all, I think that the statements have about a 50/50 chance of passing the test for admissible hearsay evidence.
If the court chooses to exclude the testimony of Mr. Cadman’s family, all is not lost for the Crown, as they still have the tapes. Since Prime Minister Harper was caught on tape admitting that he had knowledge of an offer for “financial considerations” to encourage Cadman to vote against the budget bill, counsel for the defence will have a pretty tough time convincing the court that it is not relevant, so it will almost definitely be admissible.
The defence may attempt to exclude the tape based on the grounds that it violates Prime Minister Harper’s right against self-incrimination, which is recognized by the Supreme Court as a principle of fundamental justice for the purposes of Section 7 of the Charter. I don’t see much of an argument in this case, since the right against self-incrimination exists for two reasons: 1) to protect against unreliable confessions; and 2) to protect against abuses by the state (See: R.v. Fitzpatrick, para 43). Since there was no coercion here, it is doubtful the PM could claim that his “confession” is unreliable. And of course since he was being interviewed by a journalist, there is no concern of there being any kind of abuse by the state, unless the defence can show that Zytaruk was in some way acting on behalf of the state, which is doubtful. It looks to me like the tape will not be excluded.
I will now turn to the second tape, the one containing Mr. Cadman’s statements that the Conservatives made him an offer. This too is hearsay evidence because it is “an out of court statement that is offered to prove the truth of its contents”. That is to say, it is being introduced to prove that members of the Conservative party made an offer of a financial nature to Chuck Cadman in an attempt to buy his vote. The court will have to take into consideration that it does not allow the accused to confront his accuser by means of cross-examination. In this case, I think it is much more likely that it will be admitted under the general rule of flexibility. Like the statements made by Mr. Cadman to his wife and daughter, the tape of the radio show interview is necessary because Mr. Cadman is no-longer alive to testify in court, but the tape is also very likely to pass the reliability test as well, because there can be no doubt that he made the statements since they were captured on tape, and because once again, Mr. Cadman had no reason to lie.

Is there sufficient evidence for a conviction?

If this matter went to trial, Prime Minister Harper would be charged under Section 119 of the Criminal Code, which reads as follows:

119. (1) Every one is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years who
(a) being the holder of a judicial office, or being a member of
Parliament or of the
legislature of a province, directly or indirectly,
corruptly accepts, obtains,
agrees to accept or attempts to obtain, for
themselves or another person, any
money, valuable consideration, office,
place or employment in respect of
anything done or omitted or to be done or
omitted by them in their official
capacity, or
(b) directly or
indirectly, corruptly gives or offers to a
person mentioned in paragraph
(a), or to anyone for the benefit of that person,
any money, valuable
consideration, office, place or employment in respect of
anything done or
omitted or to be done or omitted by that person in their
official capacity.

It would not matter if the defence was able to prove that the Prime Minister did not actively participate in the offence because he would still be considered a party to the offence under Section 21 of the Criminal Code, which states the following:

21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose
of aiding any person to commit it; or
(c) abets any person in committing
it.
Common intention
(2) Where two or more persons form an intention in common to
carry out an unlawful purpose and to assist each other therein and any one of
them, in carrying out the common purpose, commits an offence, each of them who
knew or ought to have known that the commission of the offence would be a
probable consequence of carrying out the common purpose is a party to that
offence.

Section 119 is very clear. It is illegal to offer money, valuable consideration, office, place or employment to a member of parliament in respect of anything done in their official capacity. The tapes in this case are pretty damning evidence.
It should be noted that under Section 11(d) of the Charter and S.6(1)a) of the Criminal Code, the accused in any criminal trial is entitled to be presumed innocent until proven guilty. For almost every criminal offence, it is necessary to prove two elements, the Actus Reus (guilty act), and the Mens Rea (Guilty mind, or guilty spirit). For this case, the Crown must therefore prove that an offer to pay money or other valuable consideration was made to Chuck Cadman for the purpose of securing his vote against the budget bill, and that Prime Minister Harper was aware of this plan. The following is a portion of the Zytaruk interview, and in my opinion is the meat of the Crown’s case:

Zytaruk: "You said (inaudible) beforehand and stuff? It wasn't even a party guy,
or maybe some friends, if it was people actually in the party?"
Harper: "No,
no, they were legitimately representing the party. I said don't press him. I
mean, you have this theory that it's, you know, financial insecurity and, you
know, just, you know, if that's what you're saying, make that case but don't
press it. I don't think, my view was, my view had been for two or three weeks
preceding it, was that Chuck was not going to force an election. I just, we had
all kinds of our guys were calling him, and trying to persuade him, I mean, but
I just had concluded that's where he stood and respected that."
Zytaruk:
"Thank you for that. And when (inaudible)."
Harper: "But the, uh, the offer
to Chuck was that it was only to replace financial considerations he might lose
due to an election."

In the above statement, the Prime Minister makes it clear that he not only knew of an offer, but that he authorized it. While he denies having any knowledge of the exact details of the offer, he does state that the offer was to replace financial considerations that he might lose in the event of another federal election. It doesn’t really matter whether the PM intended to offer Cadman a life insurance policy or funds to cover his electoral expenses. The fact remains that he was aware that two of his representatives were trying to offer money to Cadman, a member of parliament, in order to get him to vote with them.
All of the other evidence just drives more nails into the defence’s coffin. The statements made to Dona Cadman, her daughter and son-in-law, all suggest that an offer was made, and that it included a million dollar life insurance policy. If their testimony is excluded it is no great loss to the Crown, but if it is not excluded, it will likely hurt the defence. Like the testimony of his family, the taped radio interview of Chuck Cadman will also likely hurt the defence, but it should be noted that during the interview Cadman himself seemed to trivialize the gravity of the offer, when he stated the following: "There was certainly some, you know, some offers made and some things along those lines about not opposing me and helping out with the finances of the campaign and that sort of thing. But, again, you know, that's all part of the deal that goes on. It's what happens, especially in a minority situation,". You never know what kind of impact a statement like this might have on a jury. The Crown may want to consider not introducing it.

Conclusion

In my humble opinion, and based solely on what I know about the laws of evidence, criminal procedure, and the facts of this case that have been published by the media, sufficient evidence exists for Stephen Harper to be convicted under Section 119 of the Criminal Code. I would like to remind anyone who reads this that the Prime Minister, like all Canadians is entitled to be presumed innocent until proven guilty, and that it’s still early in the RCMP’s investigation, so it’s quite possible that additional evidence may exist that can either prove his innocence, or at least bring his guilt into doubt. Until I am made aware of any such evidence, I do believe that a guilty verdict is likely if he were to be tried in a court of law.