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Law Times • June 1, 2009 RCMP won't Prime Minister Stephen Harper's office for secretly tape-recording a New Democratic Party caucus conference call last fall. They say they don't have enough proof. It has to do with proving criminal intent and they've sent a letter to the NDP to that effect. It began last November at the height of the coalition govern- ment crisis, when Harper was try- ing to hang on to power while the Liberals and NDP with the help of the Bloc Québécois were try- ing to form a coalition that would have ousted Harper from power. The NDP set up a conference call for its MPs for a briefing from leader Jack Layton on how ne- gotiations were going. MPs were sent e-mails with a special code to enable them to join the call. Somehow, the e-mail to Al- berta New Democrat Linda Dun- can went by error to British Col- umbia Conservative John Dun- can (a last name mix-up), and from there Harper's office became involved and somebody among the Conservatives used the code to dial into the NDP conference call, and record Layton in private conversation with his MPs. The Conservatives ended up knowing exactly what Layton and Stéphane Dion were planning, how much input the pair were counting on from Bloc Québécois leader Gilles Duceppe and what their next move would be. This put the Conservatives in an ex- cellent position to plot their own strategy to stay in power. Harper was able to say with certainty the Bloc was involved and used the information to great advantage in Western Canada de- scribing the coalition as a conspir- acy between "socialists and separa- tists." Within days public opinion in English Canada had turned against Dion and his plan to form a coalition government. The PM's assistant press aide, Dimitri Soudas, went to selected Ottawa news media distributing parts of the tape that suited him and were politically damaging to the Liberals and NDP. The NDP quickly realized they had been overheard and sur- reptitiously recorded. They asked the RCMP to lay charges against those responsible for the recording and the distribution of the con- versation. "They didn't even have the decency to use brown envel- opes," says Layton's communica- tions chief, Karl Bélanger. "They passed out parts of the recording right out in the open." Bélanger compares it to walk- ing past an open safe and deciding to serve yourself because it's open. He says what the Conserva- tives did was criminal and some- one should have been charged. The incident has led to a lively debate among constitutional and parliamentary practice lawyers. Does the fact that the Con- servatives did not actively try to find out the secret code for the conference call but merely had it charge Conservatives T he Mounties have de- cided not to charge Con- servatives or anybody in The Hill By Richard Cleroux handed to them by error diminish criminal intent? Was the recording and use of a private conversation for political gain in itself criminal? If so, under what part of the Criminal Code? Did distribution of parts of the tape recording constitute a criminal act? Is it illegal to tape a conversation between two or more people without their per- mission under Canada's Privacy Act? And then to distribute parts of the conversation for gain? Could the Conservatives claim they were passing out the tape in the best interests of the public's right to know? There are as many legal opin- ions this week on Parliament Hill as there are lawyers. Prof. Luc Juillet, a specialist in governance at the University of Ottawa believes that although there was no Criminal Code in- fraction, because the Conserva- tives did not steal the password but merely used what was given to them, there is nonetheless an infringement of the MPs' code of ethical conduct. Juillet says that using a code of another political party to lis- ten in and tape-record private conversations does nothing to raise the image of politicians in the general public. It only adds to what has come out recently at the Oliphant Commission of Inquiry into the business dealings between former prime minister Brian Mulroney and Karlheinz Schreiber. The private enterprise example that comes to mind is WestJet Airlines Ltd., obtaining a com- puter code of a former Air Can- ada employee that had not been deactivated and using it to gain entry into the Air Canada com- puter to find out the rival's plans. The issue was settled out of court with an apology by WestJet. The NDP are not expecting an apology from Harper in the Par- liament Hill caper. Bélanger says one possibility is for the NDP to take the mat- ter to Mary Dawson, the Code of Ethics commissioner for the House of Commons. Another would be for the New Democrats to launch a civil action against the Conservatives where it might be easier to prove damages than to prove criminal intent in a private criminal suit. The Conservatives are not commenting on the RCMP deci- sion. Nor are the Mounties. The commissioner of the RCMP is Bill Elliott, a civilian who used to be Harper's security adviser. He was not available for comment. I COMMENT A global meltdown, London style BY JUSTIN MOONEY Law Times n early 2008 I did what I had been build- ing up the courage to do for some time — I moved to London, England, joining the mergers and acquisitions group of one of the world's largest law firms as a senior associate. I was not unhappy on Bay Street, however I needed a change in life generally — to shock my system out of its complacency. So I sold my house and car, gave away most of my posses- sions and moved to Lon- don for an indeterminate period of time. The most striking things that I observed upon my arrival were (a) the fact that thou- sands of people had been organized to protest the decision to no longer permit people to openly drink alcohol on the Tube (oh, Eng- land, how I adore you) and (b) that the down- turn in the global economy had hit England much more severely than it had hit Canada. The BBC and newspaper stands across the city inundated us with headlines of job losses oc- curring in the tens of thousands, the radical downturn in the housing market, that one national financial institution or another had gone or was about to go under unless the Eng- lish Treasury provided a bailout on some epic scale, and so on. Doom and gloom, it quickly became apparent, was the mood in London. However, upon arrival at my new office, I was pleased to learn that my department had hired, in addition to me, another 15 or so as- sociates, a good many of whom were non-Brits. The firm, we were told, had to grow since 2007 had been a year in which the associates had been burned out due to the incredible amount of M&A activity that had taken place. I made friends very quickly with both English people and other ex-pats — Aus- sies, Kiwis, Irishmen and other Canadians — who, like me, were new to London and were looking for a social circle. In short order my alcohol consumption level skyrocketed (purely just an effort to fit in, I assure you), after several near misses, I finally got the hang of looking right first when crossing the road, and I stopped mentally converting the cost of everything to Canadian dollars, thus doing away with the repeated dropping of the jaw that is felt with each conversion. And I was busy at work. After eight years practising general corporate/commercial law, it was wonderful to focus purely on M&A — to get intense experience in one specific area. I worked on complex global transactions of a size that rarely occur in Canada. Eventually I was asked to also join the firm's funds struc- turing and formation practice group. I did so enthusiastically, my history as a generalist causing me to want to practise more than the one area of corporate law (the fundamental skills of critical analysis, drafting acumen and a willingness to learn quickly really are port- able, wouldn't you say). I quickly came to appreciate the attitude LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. that working on the weekend is done only as a last resort and the expectation that all of one's vacation — in my case, all glorious 26 days a year of it — was to be taken. So I worked hard during the week and then jetted off to places I had always dreamed of seeing — Paris, Berlin, Prague, Amsterdam, southern Spain, Rome, and so on — at least once a month, sometimes for a weekend, sometimes for a week. I wound up in almost 25 different countries during my time away from Canada. However, as several projects kept me busy, it was becoming apparent that many of my col- leagues were not. A process started last summer www.lawtimesnews.com Speaker's Corner whereby projects that were in the pipeline were not materializing, sometimes because the client was not sure it would proceed with a deal be- cause of the economic uncertainty and other times, more scarily, because credit, which had been so freely available in 2007, was scarce; sud- denly lenders had become nervous about part- ing with their cash or, even worse, were under- capitalized and simply not in a position to lend at all. Teams within my practice group that had been built to work on specific projects were dis- banded as potential deals began to fall apart at an alarming rate. Even though things were already poor, they got noticeably worse in the autumn: Lehman Brothers Holdings Inc., fell and credit became even harder to find. The utilization rate in my department in November and December was astoundingly low — I won't even write how low it was. The chatter among associates was of how little people were doing (not includ- ing time on YouTube and Facebook). Still, I continued to hum along right up until I came back to Canada for the Christmas holidays. And we all hoped that 2009 would bring bet- ter news, notwithstanding the forecasts that were suggesting a prolonged downturn that had yet to bottom out. Then, in the first week of January we had heard that another large law firm was com- mencing a consultation process with a view to terminate 10 per cent of its associates. That signalled a real awakening among associates in my office — it was the first we had heard of one of the large international firms doing a mass cull. And then the rumours, both sub- stantiated and unsubstantiated, of layoffs — redundancies, as the English say — at count- less large firms in London started coming fast and furious. All anyone could talk about was the inevitability of redundancies at our shop. Three weeks into January I got a call from the head of my department. He asked that I come down to one of the boardrooms. I sus- pected what was about to happen, and knew what was going to happen when upon arrival to the boardroom I was introduced to 'Luke from HR.' It was an interesting experience to be laid off. After they did the deed, including letting me know that I would get my contrac- tual entitlement plus all of my costs to get back to Canada (the well-founded assumption being that landing another job in London was next to impossible), I let them know that, while I had thought it may not happen to me since I was so intimately involved in a project at that time, I did not begrudge the decision, knowing that it was not personal and related to circumstances beyond the control of any of us. So I travelled around Germany, explored Morocco, cycled for a week in the mountains in Italy, wrote the exam to become qualified as a solicitor in England and Wales, spent weeks discovering as many nooks and crannies of London as I could (and still only scratched the surface of that majestic city), and considered a potential opportunity in Bermuda. But eventually I decided that I had satisfied the restlessness that had caused me to move in the first place. It is wonderful being back at Davis LLP, the place I consider my profes- sional home. I have returned as a better, more confident, lawyer. However, more important- ly, I am fulfilled on a personal level and know well that if I find myself in a place in life with which I am not comfortable, I can go about making the changes that are needed, no mat- ter how drastic, to keep life interesting. LT Justin Mooney is an associate at Davis LLP. He can be reached at jmooney@davis.ca. PAGE 7