THE BC Prosecution Service (BCPS) on Monday confirmed that Special Prosecutor David Butcher has concluded his involvement in the 2017 investigation conducted by the RCMP into allegations of indirect political contributions and other potential contraventions of the BC Election Act.
In his “Clear Statement,” Butcher said: “I have spent considerable time reviewing the data gathered by the RCMP and have determined that the conclusion of the police is correct: that there is insufficient evidence available to meet the charge approval standard in this case.”
On March 10, 2017, Elections BC announced that its investigation into indirect political contributions and other potential contraventions of the Election Act was being referred to the RCMP, in part, to “ensure that there is no perception that Elections BC’s ability to administer the general election in a fair, neutral and impartial manner is in any way compromised”.
On March 27, 2017, the Assistant Deputy Attorney General (ADAG) for the Criminal Justice Branch, Peter Juk, received a formal request from the RCMP that he consider the appointment of a Special Prosecutor to provide police with legal advice during the course of their investigation.
On March 29, 2017, the ADAG appointed Butcher as Special Prosecutor in the matter.
At the time, NDP Leader John Horgan said: “[Premier] Christy Clark had every opportunity to clean up the wild west of political cash. Instead of siding with British Columbians by ending the influence of big money, she chose yet again to protect her rich donors. Ultimately, it’s British Columbians who get to decide whether she made the right choice.”
Butcher said: “The RCMP did not deliver a Report to Crown Counsel in this case. Rather, they provided a series of updates and a Concluding Report, which was delivered in August 2019. Those reports attached a large number of documents obtained during the investigation. The concluding report contained this comment in the Executive Summary:
“”The RCMP believes that there is no substantial likelihood of conviction for any of the violations of the Election Act that were examined during the course of this investigation. Furthermore, where violations have occurred the RCMP has determined that is not in the public interest to pursue a prosecution, as the cost of doing so would be disproportionate to the value of the donations under investigation.””
Butcher said: “Operating political parties and running election campaigns is expensive. All parties in all democracies need money to fund campaigns and support candidates. Most western democracies recognize that the fundraising process creates opportunities for those who might wish to purchase influence with a political party. Most have, therefore, introduced statutory schemes to manage or eliminate the risk of influence-peddling. The two primary methods used are to either impose strict limits and reporting requirements on donations, or to provide direct government funding to political parties. At least in recent times, British Columbia has adopted the regulatory approach. Until late 2017, BC had some of the least restrictive rules in the western world.”
The key investigative findings reported by the RCMP were that:
• Between 2013 and 2017:
– the BC Liberal Party (BCLP) received 36,069 donations totalling $44,965,255 from 11,963 donors.
– the BC NDP received 123,288 donations totalling $19,177,120 from 10,285 donors.
– the largest donors to the BCLP were large corporations, mainly involved in the mining, lumber, and property development industries.
– the largest donors to the BC NDP were large unions.
– Many of the large corporations who donated to the BCLP also donated to the BC NDP, but in much smaller amounts.
– Donations by registered lobbyists accounted for approximately 2% of the amount donated. Large law firms were prominent in the list.
Butcher noted that the synopsis of the final report concluded that:
“The initial review of information provided by Elections BC as well as whistle-blowers and independent media suggested that the scope of the problem was both significant and systemic. However, upon more detailed analysis there was no information found to support the broad allegations made in the media; both statistical and individual analysis of the donation data failed to identify a significant volume or pattern of donations.”
The RCMP conducted an analysis of the lobbyists and corporations named in the media reports. They noted that:
• many of the lobbyists identified in the reports quickly filed corrections with Elections BC, confirming that donations made by corporations or union employees were in fact made by their employees.
• donations improperly reported by employees were often a fraction of the total donated by the employers.
• in most cases, there was no confusion about who the real donors were, particularly for the employees of large corporations who donated in their own name.
• the employees interviewed by the police expressed a lack of knowledge of the provisions ss. 186 and 187, and explained, reasonably, that the breaches of the Act were inadvertent.
• Evidence of criminality was difficult to gather because there were structural flaws in regulatory accounting systems.
Butcher added: “I have spent considerable time reviewing the data gathered by the RCMP and have determined that the conclusion of the police is correct: that there is insufficient evidence available to meet the charge approval standard in this case.”
He went on to point out: “The 2017 media report contained two allegations. The first was that the absence of contribution limits made it very easy for corporations and lobbyists to attempt or appear to attempt to purchase influence with the government. The second was that the rules were being circumvented by lobbyists and others to the hide the true source of the donations. The first issue arose from the legislation and not the commission of an offence. The RCMP found no or insufficient evidence to support any charges relating to the second component. Accordingly, I have concluded that there is no prospect of any conviction in this case.”
Butcher also note: “The Election Amendment Act, 2017, S.B.C. 2017, c. 20 (in force November 30, 2017) introduced significant changes to Part 10 of the Act, which appear to have cured the difficulties reported by the media. Section 186 has been substantially rewritten. Only “eligible individuals” (citizens or permanent residents who are residents of BC) can make donations, with s. 186.01 capping “eligible individual” contributions to a party, candidate, or constituency association at $1,200 per year (newly adjusted by inflation for 2020 at $1,253.15). Organizations (incorporated or unincorporated) are prohibited from making contributions. Section 220.04 creates administrative penalties of up to twice the amount of a prohibited contribution upon the person making the contribution. These amendments should squarely address the concerns expressed by the media and the complainants in this case.”