02.14.2011 04:28 PM

Interesting reading for Bev Oda’s lawyer

336. Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 296.

368. (1) Every one who, knowing that a document is forged,
(a) uses, deals with or acts on it, or
(b) causes or attempts to cause any person to use, deal with or act on it,
as if the document were genuine,

(c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(d) is guilty of an offence punishable on summary conviction.
Wherever forged (2) For the purposes of proceedings under this section, the place where a document was forged is not material.

R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25.

38 Comments

  1. Jay-TO says:

    I think that should be a mandatory minimum sentance of 14 years. I have to contact the nearest tough on crime Conservative MP. And I want truth in sentencing on this one too.

  2. Pete says:

    The Harpercrite culture of lies and deceit continues unabated/

  3. Michael S says:

    There is dumb, and there is turnip truck dumb.

  4. Ted says:

    Do Oda’s ministerial powers allow her to insert a “NOT” directly into the Criminal Code or is that Stephen “I make the rules” Harper’s job to do?

  5. James Bowie says:

    I follow you on 368, but with 336 is Oda a Trustee?

    • Warren says:

      Of course. She’s a trustee in respect of a public purpose/trust. Most of prosecutions of politicos/bureaucrats in Canada include breach of trust. Fraud, theft, sometimes conspiracy, and almost always breach of trust.

  6. James Bowie says:

    Ah, I see. This is one of those uniquely Canadian thingies. Here I was looking at silly common law rules like certainly of objects and subject matter. Good call Warren; Good call.

  7. james Smith says:

    ‘member she said this in paragraph 5?
    http://is.gd/CW9PAn

  8. nic coivert says:

    Curious though that she is taking the blame. Harper has cut her loose already to be flayed by the political winds. Odious behaviour for sure though, and typical of this regime. The law needs to get tough on these get tough on law Conservatives.

    • Namesake says:

      ooh… quick, Nic; let’s copyright that: “Bev Odious”

    • JenS says:

      They know this won’t have any traction in her riding, where foreign aid is one of those “extras” Oda’s brethren consider at best a frill. Her seat is as safe as they get, at this point in history.

  9. Derek Pearce says:

    I updated my Fbook status to say “Will the government mind if I scrawl “NOT” at the end of tax return? The gov feels that kind of thing is ok yes?

  10. Eric says:

    I’m not sure if we are allowed to link-out in the comments, but I’m pleased to see that I am not the only conservative that supports her ouster. (from Searching for Liberty: http://searchingforliberty.blogspot.com/2011/02/todays-menu-from-conservative-caucus.html)

  11. smelter rat says:

    ridofbrain? canadiannonsense? wilson?…………..hello??………………….*crickets*……………………

  12. PoliticalPundit says:

    Harper ousted other cabinet ministers for far less.

    I doubt that he will oust odious Bev Oda. Why? Because of her strong connections with the ethnocultural communities around Toronto where much needed seats are being sought and her very tough-minded Christian values conservatism as witnessed in the anti-abortion and anti-famlily conditions of the government’s rather irrational maternal health projects abroad.

    Oda is a political survivor and Harper will reap her full wrath if he tries to jettison her from Cabinet just before a spring election. He might want her to be defeated so that he will not have to deal with her after the election.

    • JenS says:

      Funny, because her riding and local support are as white as they come.

      A funny(ish) aside: when she was first elected, much was made of her being the first Japanese-Canadian woman elected. The local paper’s headline on that story? “Oda takes seat; leaves mark.” I wish I was joking.

  13. AmandaM says:

    From my experience working as a policy assistant in a Minister’s Office, this kind of thing happens ALL THE TIME. The bureaucrats bring the Minister briefing notes with pros and cons of 3 different outcomes, and they recommend, based on their knowledge and experience, one of the options for dealing with a particular issue. They flesh out communications/issues management and policy all on the same document, and then the Minister chooses one of the options (in my experience, with a checkmark or initials beside option A, B or C) and then signs the document, dates it, a witness signs it (which was always hyper-fun and thrilling for a nerd like me to do) and the Deputy or Executive Officer sign it, and life goes on.

    The problem with the CIDA document is that they pre-supposed the Minister would go along with the recommendation to continue to fund KAIROS. They did not give her an option to say No to their recommendation, which in my view is more of a crime – presuming a government decision is not allowed. So what should the Minister have done? Sent the document back and add a place for her to sign that says she disagreed with the recommendation and that her decision was to no longer fund this group. Her reasons are for her and her political staff to manage and discuss in the House. Maybe it had to be a fast decision and she has a group of slow-moving bureaucrats – it’s not out of the realm of possibility that she was being pressed to make a decision right there and then, or that she was not aware that she was allowed to disagree with a civil service recommendation. Who knows – the point is, it’s her Ministerial prerogative to make these kinds of decisions and I don’t find the addition of “not” to be offensive or fraudulent.

    What IS offensive is that she lied about something she had done for which there was no reason to lie. While she herself my not have inserted the word “not” (if she had, she should’ve initialled it to indicate responsibility), the intent of the question of “who put that word there” is clear, and it’s silly to answer “I don’t know” if she doesn’t know if Staffer A or Staffer B wrote it in. The point is that the answer should’ve been, “I directed the word to be put in based on my prerogative to disagree with a civil service recommendation. Who actually, physically wrote “NOT” isn’t important and I don’t know who it was”. Then again, these people are trained to answer questions of “do you know what time it is” with a simple “yes”, even though the intent of the question is “what time is it?” This is one of the consequences of gotcha politics – terror of providing more information than is actually asked for.

    As for the Prime Minister’s involvement, it’s a tempest in a teapot. Minister Oda is a long-term Minister of International Cooperation and knows what her priorities are. I’m almost certain the Prime Minister was not directing a $7M, 4-year funding decision. We really need to have some rationality in the discourse here – the Prime Minister cannot be everywhere all the time. I can’t believe I’m defending him a bit, but we must be able to see the forest for the trees.

    If we want to change this country, jumping on stuff like this that takes explanations and a fairly sophisticated understanding of how MOs work, and how the bureaucracy does things in their own vacuums, etc, is NOT the way to go about doing it. If my relatively aware office mate doesn’t care, then you can bet your sweet bippy that very few others do. This is simply not the way to win votes – parliamentary procedure and ministerial decision-making is boring, needs to much explanation, (cf. proroguing parliament – loser issue!) and is a dog’s breakfast that no one cares about.

    • smelter rat says:

      If it’s true that most Canadians don’t care if their politicians lie to them, then we seriously are fucked as a country.

    • Namesake says:

      You may mean well, Amanda, but I’m not sure you know all the facts of the case, such as the timeline.

      E.g., I think the original doc. was signed by all the principals — without the “not” — a couple months before it was mysteriously added / rescinded later.

      And the issue isn’t whether the Minister or the gov’t has the prerogative to overturn the line dept’s rec’s for their own political or ideological reasons. Clearly, they do.

      The issue is that they should be honest about that when they do — as they’re sort of doing on the internet billing & Globalive issues, e.g. — instead of LYING about it and pretending that it was the bureaucracy’s decision, not theirs — as in the hobble the Census issue; and the ‘we better fix the reactors before we run out of medical isotopes’ issue; and the, ‘but, er, the long gun registry IS functioning well at low cost now and those police who do use it find it useful’ file; and the, ‘but, um, most of the actual farmers keep voting that the Wheat Board is actually working for them, now’ file; and probably lots of other files — only some of which we know about because of the gag orders and inaction by the Sargent Shultz, now MIA ex-Integrity Commissioner, to bring more of them to light.

      And pace your somewhat concern troll-y advice to let such sleeping procedural dogs lie, this DOES fit into an election-worthy narrative that CAN have legs, once the appropriate ads roll out: to the effect that –

      This Party has a pattern of not only overruling the non-partisan recommendations from the government’s own professional experts for narrowly partisan reasons, but also lying about it to try to deflect responsibility, often at the expense of faithful public servants’ careers.

      • AmandaM says:

        @ Namesake: The reality of politics in this country (and every Western Liberal Democracy I can think of) is – YOU may care, as a politically “aware” person, but the vast majority of Canadians do not. Not one of my 300 FB friends has posted about this, save Warren. As for contributing to an ongoing narrative about the government (I am a card-carrying Liberal), this is not an election-winning narrative. The collective political memory is 6 months AT BEST, and this stuff just holds no sway. You know what IS an election-winning narrative? See Change That’s Working Campaign, ’07 and the narrative that was built around an emotional, base issue as education/religion.
        You know what other narratives work? Balancing Budgets – see last November’s GOP victory. Or Obama for America ’08 – Change, Hope, etc.

        Troll-y advice. Honestly. /Rolleyes.

        Also, the timeline – the President of CIDA and the other bureaucrat signed it, then two months later the Minister signed it with “NOT” included. See Adrian McNair’s column in the Post. He quotes the bureaucrat’s testimony who was in the know.

        I don’t disagree with your middle and final paragraphs, and I’m not a fan of this government (please see my letter to Warren that he posted re: maternal health last Spring), but I think making sensational claims is not reasonable nor does it contribute to the discourse around the reality of this gov’t and their shenanigans. The idea, I would think, would be to find something BIG so that they don’t tire the population with wolf-crying every week.

        @ Eddie C: Yup, there should’ve been a place for the Minister to disagree with the recommendation on the document, and that change to Ministerial notes has happened (again, Adrian McNair’s column & bureaucrat’s testimony). Everyone needs to CYA, and the change to Ministerial notes’ format has made that possible. And to your second point, had the Minister initialled her “NOT” (no matter who actually wrote the word), this would be moot. And, sending the paper back is exactly what she should’ve done, but as I said in my original post, there may have been deadlines reasons and a slow-moving bureaucracy, who knows – but yes, absolutely, her staff should’ve done that. Basically, that’s what I said!

        @ smelter: Look at participation rates. Look at how quickly issues move off the front page. As President Obama said in his news conference, “[reporters] sure are impatient”, always looking for the next issue in this system that we have all been guilty of creating. People expect a certain amount of lying in politics, and it’s not always a lie, or a misleading statement, or a fib, from everyone’s perspective. It’s the job of the opposition to be OUTRAGED and go looking for these “gotcha” things to pick on. Minister Oda likely believes she told the truth when she answered “I do not know who put the ‘Not’ on the document” – she probably doesn’t know if Staffer Jim or Staffer Jane wrote it on the page after she told her staff to do it (often there are two or more staff in those meetings). As I said, these people are trained to only give exactly what information they are asked for (cf. the “do you have the time” question, originally from “The West Wing”).

        • Namesake says:

          I’m not convinced of your Liberal bona fide’s, esp. given the “rolls eyes” comeback:

          if you’ve been coming to this or other Lib blogs w. any frequency (apart from on the odd issue like maternal health which annoyed even someone who may have been a political staffer for the Harris/Eaves gov’t), you’d know that ‘concern trolls’ of people posing as sympathetic to the Liberals’ fortunes are an all-too common occurrence — esp. here (where Consistent/Absurdant tries on a new identity pretty much every day).

          And it seems mighty premature to try to pour cold water on this as unworthy of attention — the conbots typical move — considering that it’s only beginning to pick up steam and might very well result in the only sitting Cabinet Minister being found guilty of Contempt of Parliament in almost 100 years

          And it’s not just the Libs that are sitting up and taking notice: even Harper booster’s like Ivison have already had to concede, “Oda’s tale bodes ill for our democracy,” and
          even the Blogging Tories themselves are having to ask whether she should be booted from Cabinet.

          And if she is — or possibly even faced with criminal charges — then even some of your blase FB friends will eventually arch an eyebrow.

          http://fullcomment.nationalpost.com/2011/02/15/john-ivison-odas-tale-bodes-ill-for-our-democracy/

          http://www.bloggingtories.ca/forums/viewtopic.php?p=93543

          • Namesake says:

            ooh, it’s already been kicked up a notch: former CPC Chief of Staff Tom Flanagan stated on P&P that clearly Oda misled the House and ought to resign (“in an ideal world”),

            and this very minute the National Post officially threw her under the bus:

            http://fullcomment.nationalpost.com/2011/02/15/national-post-editorial-board-bev-oda-should-resign-or-be-fired/

          • AmandaM says:

            Don’t question my loyalties. You think you know? You don’t. Ask Warren if you’re so concerned.

          • Warren says:

            Don’t question her loyalties.

          • Namesake says:

            okay, sorry for questioning whether you were sincerely offering well-intentioned advice for the Liberals.

            But I still disagree on its substance: it’s not foolish to compile a list of the current govt’s lawbreaking and bad behaviour, in addition to whatever else the Libs do by way of their own policy development.

            Because coming from this far behind; with this much disarray & lingering discord & lack of money in the Party; and with the economy doing reasonably okay, all things considering; well, the next election’s going to have to be fought on at least two fronts to win:

            you’re right, of course: the Libs & undecideds DO have to be given a straight-forward, well-resonating, positive reason to come back to them…

            but we nattering nabobs of negativity are right, too:

            both the hard-core and soft-Conservatives need to be given reasons to stay home, too… by pointing out to them the myriad of ways they’ve been let down by those who’ve betrayed their promises to do things differently… like, with integrity.

            Which is why it’s useful to highlight this episode, which not only irks the religious right (a very important component of Harper’s base)

            http://www.religiousrightalert.ca/2010/12/26/bev-oda-ignored-cida-betrayed-kairos/

            but also the more pragmatic, business-oriented types, who don’t like to see a CEO or the business of the nation operating like this: on the basis of ill-considered ideology clouding judgment and with misinformation and fraud being perpetuated to try to cover that up. Because they know that’s not good for business, and won’t end well. Here’s a useful new narrative along those lines:

            http://www.thestar.com/news/canada/article/939321–walkom-oda-s-attempt-to-mislead-is-part-of-tory-strategy

            And BTW, the latest intel is that Oda never actually physically signed the document in question at all (it was robo-signed, like constituency letters)… but that she did stew over it for some time.

            http://www.thehilltimes.ca/dailyupdate/view/79

            So, again, I think your defense founded on theories about what might have happened were premature, and that WK was right to bring people’s attention to this as something to watch.

    • Eddie C says:

      It is totally offensive and fraudulent to the officials. I’ve worked in policy as well and you’re right, the standard practice is to provide multiple boxes to tick for different options or at least a “do/do not accept” option, to which the Minister deletes one. However, the latter should always be below the signatures of the officials who drafted the recommendation paper. This separates the Ministerial decision to accept or decline advice from the bureaucratic decision to make a particular recommendation.

      Simply adding the “not” above the signature boxes makes it look as if the officials at CIDA might have recommended defunding Kairos, which they did not. Given the deficient paper, there were two ways a competent minister could have dealt with this, and still declined to accept the recommendation: Initial the addition of “not” to make it clear that that was a Ministerial decision, or send the paper back to CIDA unsigned and ask for a different/properly formatted paper. Not hard.

  14. Cath says:

    Just another diversion that most average Canadians will not care about today I’m betting. I have read on another blog that the document in question was from 2009? If this is true I’m thinking a number of things but mostly wondering if this will change anything at all. I doubt it.

    Why send Bob Rae out to lead the news conference on this? Who’s leading the LPOC anyway?

    If the LPOC were a fish tank only a few good floaters left….the rest, joining the bottom feeders for news bites. I miss Bart the Political Fish!

  15. smelter rat says:

    Geez, Cath, just wake up from a coma? This issue didn’t just surface yesterday.

  16. Fraternite says:

    Bev Oda isn’t a criminal. She’s a lying scumbag, a bad Minister, and a bad Parliamentarian — and the PM that keeps her instead of instantly firing her is a bad PM — but she didn’t do anything criminal.

    R. v. Valois long ago established that the perpetrator of a forgery cannot be its target, and given that the power to approve or disapprove funding is solely vested in the Minister, she didn’t utter a forged document because the only party that was a witness to the forgery was herself. Lying to Parliament and submitting a record of her half-assed alteration to the Speaker after she made the decision not to fund isn’t criminal because Parliament doesn’t have the authority to fund or not fund (the power is uniquely vested in the Minister, who has no legal obligation to obtain the specific approval of Parliament in this matter), it’s just really lame and pathetic and typical of the crap this Government routinely pulls when it comes to transparency and accountability.

    Maybe the RCMP could get her on perjury, but that’s only if she was sworn in prior to her Standing Committee testimony and that almost never happens.

    As the Supreme Court noted in R. v. Valois:

    “Even if by some stretch of the imagination it were to be regarded as having been used as genuine, the fact remains that no one was injured by the deception. Using a forgery as if it were an original assumes someone on whom the deception is to be practised. There has to be a target. Who were the targets in this case? ‑‑ the banking authorities? ‑‑ hardly, since with respect to them the use of the false bill was latent. There was no evidence that they ever saw the bill. The false bill was never seen by the Revenue Department either, though the latter benefited from it.

    While it is true that there is nothing in s. 326 which expressly states that use of a false document must cause prejudice to someone, the fact remains that someone, even if not prejudiced, must be a witness to the deception, and it would be an absurdity for such a witness to be one of the perpetrators of the forgery.

    For all these reasons, the Court finds that the accused did not make use of the forgery, and he should be acquitted on all the counts relating to this charge.”

    http://csc.lexum.umontreal.ca/en/1986/1986scr1-278/1986scr1-278.html

    • Namesake says:

      Hmm. I’d be really surprised — and considerably outraged — if you’re right that this SCC case would prevent a fraud charge from sticking or even being applied, here.

      They’re quite different situations: the SCC case involves a son-in-law lawyer agreeing to write up some phony invoices to a company at their behest to funnel a reward / kickback to his father-in-law who’d authorized a bank loan for them.

      So the lawyer didn’t gain anything, the gov’t wasn’t out anything (he paid the income tax on the mythical service), and, if we ignore the fact that the Bank might not have been too impressed with its loan employees accepting ‘gratuities’ & whether the company had shareholders that might’ve been the teeniest bit irked about those 3 minor payments of $3,000 per year to grease the wheels of the banking industry, it really WAS a victimless crime (i.e., it did not “cause prejudice”).

      In the KAIROS case, however, there were two sets of victims that were harmed by the misrepresentation on the document, which rendered it to mean that CIDA was recommending that the agency NOT be funded and that the signatories all agreed with that; to wit:

      the agency, which lost 5 years of core funding, which nearly put it out of business;

      and the agency, and especially its directors who’d signed the document, who had now been depicted as suddenly, unaccountably vetoing a proposal which clearly met its funding criteria from an agency it had been supporting for decades and which it had been working with on this very proposal to ensure that it remained in the current guidelines.

      i.e., the very type of thing that compelled another ADM, Munir Sheikh of Statistics Canada, to resign over, when it was publicly suggested by his Minister that he had recommended something that he most decidedly would not, since it did not conform to his professional education, judgement, and standards.

      As for: if they’re the only witness it’s not really a fraud… well, maybe that applied to that specific SCC case.

      But in this case, thanks to the FOI request, well, there’s millions of us witnesses now, aren’t there.

      And it wouldn’t — or at least I hope it wouldn’t — even hold up as a defense in something like a wrongful termination suit, where a CEO fired someone on the basis of a different supervisor’s performance review to which he added some “NOT”s or “Dis”‘s etc. with a crayon or sharpie to reverse its findings, where he’d be the only witness of that until the court case or labour tribunal or whatever.

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