Tuesday 24 June 2014

Documents decision a setback for Del Mastro

Crown prosecutor Tom Lemon
At the beginning of court proceedings on Tuesday, June 24, the legal team defending Peterborough MP Dean Del Mastro and the official agent for his 2008 campaign, Richard McCarthy, was dealt a legal setback.

Judge Lisa Cameron had adjourned early on Monday as it had become impossible for the trial to proceed without having her rule on the admissibility of printouts of electronic documents. These are documents used by the crown that may or may not be entered as evidence, but that the prosecution wants to reference when examining its key witness, pollster Frank Hall.

“Yesterday was a good day for us,” Del Mastro’s lawyer, Jeff Ayotte, told La politica before proceedings began on Tuesday. “But in a trial of this length I have learned not to judge on the basis of one day.”

His comments proved prescient. Upon opening the proceedings Judge Cameron ruled that the Canada Evidence Act allowed for documents to be referenced if the creator of those documents was present and testifying under oath.

This was a setback for the defence, which spent most of the first day challenging the crown’s use of a binder full of printouts of emails and invoices when examining Mr. Hall.

Given that the defence had the right to cross examine the witness, Judge Cameron ruled that this was adequate protection from hearsay. It is usual in common law to disallow statements made out of court if the evidence is second-hand. If there are documents that were not generated by Mr. Hall, Judge Cameron ruled there would have to be further proof of their validity.

After the decision, crown prosecutor Tom Lemon embarked on a routine that would have made detective Colombo proud. His questioning of Mr. Hall, most of which centered on the confirmation of authorship of emails, was logical and coherent except for ongoing confusion due to the two sets of documents: those accepted as evidence, and those used by Mr. Lemon in his own binder to examine Mr. Hall (and which were subject to Judge Cameron’s ruling).

Lemon repeatedly lost track of where he was, miss-spoke (even once requiring Mr. McCarthy's counsel to stand and correct the record), and huddled with his assistant as he tried to sort out tab numbers and find the correct materials. Judge Cameron exhibited extreme patience and composure, even as Lemon gave her a copy of another document that was not included in his binder, only for this document to have text missing.

It is not sure if Lemon’s behaviour is a strategy to use up time, or to make the defence under-estimate him. What is clear is that, as Mr. Lemon himself stated, he is proceeding with an “abundance of caution”.

And we are beginning to see why. Early evidence suggests that the defence will argue a number of technicalities based on the timing of correspondence between Mr. Del Mastro and Mr. Hall.

This is because, in arguing that Del Mastro overspent in his 2008 campaign, and that he covered it up, the timing of payments will be critical. If it turns out payments were made before the writ was dropped on September 7, 2008 – (another fact Lemon got wrong when he said that the “election” was held then, only to be corrected by both Judge Cameron and the defence) – then Del Mastro could be in the clear.

So far, Hall has stated that his relationship with Del Mastro previous to the writ being dropped for the 2008 election was $6,128.86 spent in spring of 2007.

On Tuesday Mr. Hall testified that after the writ for the 2008 election was dropped on September 7, 2008, Mr. Del Mastro called him to enquire about voter ID and “get out the vote” services. This was after Mr. Del Mastro learned that he would not be included in the conservative Party’s Blue Plan, which offered assistance in contested ridings.

What followed were a number of phone calls, Hall testified, with an agreement for his now-defunct firm Holinshed to provide 630 hours of calling for $20,000, ($21,000 with GST).

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

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