Monday 23 June 2014

Defence and crown battle over evidence admissibility on first day of Del Mastro trial

The Dean Del Mastro trial opened Monday in a courthouse in Peterborough, Ontario, with crown prosecutor Tom Lemon and defence attorney Jeffery Ayotte embarking on a day-long sparring match over the admissibility of electronic evidence.

Dean Del Mastro in court
In the end, Justice Lisa Cameron decided to adjourn early and make a ruling in the morning.

Del Mastro, the federal Member of Parliament for Peterborough, and Richard McCarthy, the official agent on Del Mastro’s 2008 election campaign, are charged with overspending during the campaign and then covering up the alleged misdeed.

In his opening statements Mr. Lemon asserted that the crown would prove that Mr. Del Mastro backdated a cheque for $21,000 to Holinshed, a polling company owned by Frank Hall, to make it look like it was written in August when it was written in October. The crown further claimed that evidence from the RCMP would prove that Del Mastro did not have the resources in his account in August.

The Del Mastro campaign’s return to Elections Canada reported paying only $1,575 for Holinshed’s work. In total, the crown alleges that Del Mastro and McCarthy overspent the campaign limit of $92,567 by $17,850 during the 2008 campaign, and that they then falsified documentation submitted to Elections Canada. As a federal candidate, Del Mastro’s contribution limit to his own campaign was $2,100.

Frank Hall was the only witness called to the stand on Monday. He is expected to give evidence for the next two days. It might take longer: the proceedings got bogged down early when the defence team challenged the crown’s use of a binder full of printed emails and invoices.

So far, both the defence and the prosecution appear to have stayed onside with Justice Cameron, who was a paragon of patience during the defence’s repeated challenges and the crown’s ponderous, even plodding, approach to the proceedings.

After rejecting the defence proposal for a voir dire (essentially, a hearing within a trial) to settle the matter of the admissibility of the crown’s binder and other electronic evidence, Justice Cameron ruled that she would allow the binder to be used for the day’s proceedings but, should she decide over night that it was not to be allowed, she would disabuse herself of the evidence that had already been presented to her.

Such mental gymnastics in the service of judicial objectivity is quite a feat. It would not be allowed for witnesses or juries, mere mortals all,  but Justice Cameron’s thoughtful and respectful approach to the trying tactics of both sides suggest that, if anyone was up to the task, she was.

Her ruling was accepted by the defence, but then it didn't hold: the defence again challenged the crown as it continued to use materials in the binder as mnemonic aids when examining Mr. Hall. In the end, the crown expressed concern that an invoice for $21,000, though created electronically, only now exists in paper form, and that without a firm ruling from the court it was hard to know how to proceed.

Justice Cameron concurred. In effect, the trial could not continue without a ruling on the admissibility of the printed electronic records, and that ruling could not come without deliberation. So, we wait until the morning to find out how Justice Cameron will rule.

Del Mastro faces four charges, and McCarthy three, with a maximum sentence of five years in jail and a $5,000 fine upon conviction.

(TE Wilson is the author of Mezcalero, a Detective Sánchez novel.)

See also:
June 25: Crown tightens evidence chain around Del Mastro
June 24: Documents' decision a setback for Del Mastro

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