Legal advice led council to lay charges against mayor
The advice provided by an outside lawyer appears to have been decisive in the city council decision to lay charges against Mayor Larry Di Ianni and defeated council candidates Marvin Caplan and John Best. It also provides some hint of the legal challenge the three men will face in court.
Kingston lawyer Timothy J Wilkins submitted a twenty-page legal opinion that was distributed to councillors on Monday morning. It was cited specifically in Monday afternoon’s motion to lay charges against the mayor, which stated in part “that the charges to be laid shall be those for which reasonable and probable grounds exist for believing that an offence has been committed as detailed in the legal opinion of Timothy J Wilkins dated March 3, 2006.”
The motion came at the end of a three-hour meeting that saw one hour of presentations from citizens, and two hours of in camera discussion by councillors. When they emerged from the secret session, the clerk read the motion on Di Ianni, and it was adopted without any discussion.
The motion was moved by Flamborough councillor Margaret McCarthy and seconded by downtown councillor Bob Bratina. It passed 12-1, with mountain councillor Bill Kelly asking to be recorded as opposed. Two additional motions – one on Caplan and the other on Best – were also adopted by the same tally, but without being read out, and then the meeting was immediately adjourned.
In his advice, Wilkins says “there are reasonable and probable grounds to believe [that] Mr Di Ianni committed the offence of failing to return a contribution made in contravention of the Act as soon as possible after he became aware of the contravention”.
In Wilkins’ opinion, there were about 25 instances in which this occurred. He argues that “it does not represent a proper discharge of a candidate’s duty under the Act to first wait until a complaint is made about having received excess contributions before determining whether they exist and then refunding them.”
Wilkins also explains the standards for “strict liability offences” such as those created by the Municipal Elections Act. Unlike criminal offences, there is no need to prove the accused intended to commit the offence. “Once the prosecution proves the accused has done what is prohibited by the Act, the burden shifts to the accused to prove on a balance of possibilities that he or she acted with due diligence and took all reasonable care to avoid committing the offence.”
Wilkins utilizes this standard to evaluate the potential for successfully pursuing charges against Di Ianni, Caplan or Best and includes in his analysis whether there is enough evidence to reasonably expect a conviction. In this light he advised against charging Di Ianni with accepting donations from ineligible donors because the compliance auditor did not determine who specifically received the monies given to his campaign.
“[I]n order to have reasonable and probable grounds to believe that Mr Di Ianni committed the offence,” Wilkins notes, “there must also be some evidence to indicate that he was the person who actually accepted the offending contributions.”
Since he was unable to find this evidence in the audit reports, Wilkins says “the possibility remains that it was someone other than Mr Di Ianni who accepted the unlawful contributions on his behalf”.
John Best, on the other hand, frankly informed the auditor that he was aware that he had received donations from a charity, and that, plus a failure to properly record some donations, led Wilkins to conclude he should be charged.
In the case of Marvin Caplan, Wilkins advised charges for “failing to retain his financial records for the requisite period of time”. Caplan misplaced his election material, but the Act requires it be kept for three years to allow compliance audits to occur.
The Wilkins report was initially confidential, but was made public by a decision of the council after they voted to lay charges. It can be viewed at http://www.myhamilton.ca/NR/rdonlyres/E
The same file includes the advice provided to councillors three weeks ago by the city’s own lawyers. It’s content seems quite different from Wilkins advice. For example, it warned that “the laying of charges without the appropriate ‘reasonable and probable grounds’ may lay the complainant (and in this case the City) open to liability for malicious prosecution.”
It also asks councillors to consider whether “there is reason to believe that one or more of the candidates deliberately violated the Act” and says the charges would have to be withdrawn if the prosecutor was not satisfied “that, based upon the available evidence, there is a reasonable likelihood of obtaining a conviction.”
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Motion and Vote
Moved by McCarthy, seconded by Bratina
(a) That the City of Hamilton institute the laying of charges against Larry Di Ianni under the Municipal Elections Act 1996, Chapter 32 as amended;
(b) And that the charges to be laid shall be those for which reasonable and probable grounds exist for believing that an offence has been committed as detailed in the legal opinion of Timothy J Wilkins dated March 3, 2006;
(c) That the City Solicitor shall report back to Committee of the Whole at the earliest opportunity, setting out for council’s approval appropriate retainer of outside counsel to have carriage of the prosecution of the charges.
In favour: Braden, Bratina, Bruckler, Collins, Jackson, McCarthy, McHattie, Merulla, Mitchell, Pearson, Samson, Whitehead
Opposed (recorded): Kelly
Absent: Ferguson, Morelli
Declared conflict of interest and did not vote: Di Ianni