Mountie on a high wire!

RCMP Corporal Greg Horton

Senate spending scandal RCMP probe a high-wire act

The stakes are high for the embattled RCMP as it probes the senate spending scandal. Missteps could have huge repercussions, reflecting on the force's independence and its ability to conduct a thorough and fair inquiry.

Missteps in how hte RCMP handles the sensitive spending scandal probe could reflect on Commissioner Bob Palson's leadership of the force, Tonda MacCharles writes. (Tonda McCharles/Toronto Star file photo.)

Tonda MacCharles, Ottawa Bureau Reporter
Sunday, November 24, 2013

OTTAWA—RCMP Corporal Greg Horton is a 21-year veteran Mountie described as the lead investigator in the explosive affidavits on the RCMP’s senate spending probe.

Horton, with experience in major crime investigations and “applications for judicial authorizations,” is just the Mountie who holds the pen.

There is an entire team of investigators assigned to what is a high-stakes probe not only for the Conservative government.

It’s also a high-wire act for the RCMP’s recently constituted national division and its unit in charge of so-called “sensitive and international investigations,” which works out of an east-end Ottawa location, not the RCMP’s headquarters in suburban Ottawa.

The stakes could not be higher for the embattled RCMP as well as for Prime Minister Stephen Harper, a man whose reputation hangs on what he did not know.

Missteps could have huge repercussions on the force, reflecting on the RCMP’s ability to conduct a thorough and fair inquiry, its independence, and Comm. Bob Paulson’s leadership of the force. Unjustified criminal charges could give rise to questions not just of incompetence, but whether political agendas are at play.

The investigation that began in March into questionable senate spending now has reached into the highest political office in the country with allegations — still not formally filed as criminal charges — laid out in detail in public affidavits.

The very fact the RCMP’s working theories are public has given rise to questions. But more on that in a minute.

This past week, Horton swore before a judge the RCMP has “reasonable grounds” to believe that Harper’s former chief of staff, Nigel Wright, and Senator Mike Duffy joined hands in a bribery scheme that sought to buy Duffy’s silence, an altered Deloitte audit, a whitewashed senate report and political cover.

Duffy is separately alleged to have fraudulently used senate resources to pay his housing costs and to cover some travel expenses, as well as for allegedly giving a contract to a friend for apparently little work. Other senators — Conservative appointees Pamela Wallin and Patrick Brazeau, along with former Liberal Mac Harb — are under RCMP investigation, too, in connection with their senate billings.

They are complex files. About 25 Mounties are poring over emails and bank records, conducting interviews — Senator David Tkachuk says they came to him in Saskatchewan while he was undergoing cancer treatment — and editing the summaries that seek to persuade Ontario Judge Hugh Fraser to issue the production orders.

And with Horton’s bombshell affidavit — known as an ITO or Information to Obtain a judicial production order — this week, questions are being raised about why the RCMP has laid it all out there in the absence of formal criminal charges.

The answer in part, says the RCMP, is a 2005 Supreme Court of Canada decision known as Toronto Star Newspapers Limited versus Ontario.

The Star and a number of other media outlets challenged sealed search warrant applications in an investigation into the Aylmer meat-packing plant.

The resulting Supreme Court decision set out clearly that investigators have a high bar to hurdle before a court will now seal search warrant applications.

“Court proceedings are presumptively ‘open’ in Canada,” Justice Morris Fish wrote for a unanimous court, and when the police or Crown seek a sealing order, they need hard evidence to show it would risk the integrity of a criminal investigation. Simply suggesting it would create a disadvantage in an ongoing investigation, or that publicity would compromise investigative efficacy, is not enough, Fish said in the 9-0 ruling.

In the senate probe, Mounties have worked with a provincial Crown attorney at the Ottawa courthouse who provides advice on whether its applications are up to legal scratch, and whether an application to seal the warrants would be justified.

In fact, the Mounties did seek a sealing order on one of the first ITOs filed in the senate investigation and it was granted, says RCMP spokesperson Lucy Shorey.

However, media outlets challenged the sealing order in that matter, and the Crown and RCMP decided it couldn’t meet the test to keep the matter secret.

“In consultation with assigned prosecutors, and based on the 2005 Supreme Court decision Toronto Star versus Ontario, it was determined that there were insufficient grounds to maintain a sealing order,” said Shorey in an email reply to The Star’s questions. “This pertains to all search warrants/production orders on this investigation.”

Shorey added Ottawa court administrative officials now additionally require RCMP investigators to sign forms allowing the release of ITOs, a move she said has only been required in the past three weeks.

“RCMP National Division investigators were following administrative procedures as requested by courts.

We were not required to follow this procedure prior to 3 weeks ago,” she wrote.

That may well reflect a decision last month by Ontario’s attorney general to reinforce to court clerks across the province that the law emphasizes open access to court information.

Court officials were unavailable immediately for comment.

However, it is significant that the RCMP did not have to execute a judicially authorized production order on the Prime Minister’s Office.

Once the RCMP confirmed in May it was investigating, Horton wrote, the prime minister personally ordered relevant emails retained.

(It was already too late in once case. Harper’s special counsel Benjamin Perrin had left the PMO in April, and the government later told the RCMP it was standard protocol to destroy an employee’s records once they leave the job.)

However, Harper waived parliamentary privilege and instructed Privy Council officials to release all other related PMO documents to the Mounties.

The RCMP was given access to an extraordinary trove of 260,000 electronic records, winnowed those to 2,600 of potential evidentiary value, and after combing through the emails and conducting interviews, they have discovered new discrepancies to explore.

That was the reason for this week’s affidavit in an application to get a production order for access to Senate documents.

The Senate, an independent legislative body, is master of its own administrative processes. The Speaker, Conservative Senaator Noel Kinsella, through the senate’s law clerk has indicated the documents will be handed over, subject to the authorization.

That explains why the blockbuster affidavit was filed, and released publicly. Public interest is high and news organizations, including the Toronto Star, are making daily inquiries for access to new documents.

The RCMP has declined the Star’s request for interviews with Horton or other investigators.

But this potboiler has many chapters to come.