Court won't hear G8 audit case before election

A Federal Court judge has denied a request to speed up a lawsuit that could have forced the auditor general to release her audit into the government's G8 spending before Monday's federal election.
Kathleen Trotter, centre, and the online activist group Avaaz.org is suing Auditor General Sheila Fraser to release her final report into G8 spending. Emma Ruby-Sachs, right, the group's campaign director, and legal counsel Frank Addario joined Trotter at a Toronto press conference Tuesday. (Patrick Morrell/CBC)

A Federal Court judge has denied a request to speed up a lawsuit that could have forced the auditor general to release her audit into the government's G8 spending before Monday's federal election.

Judge Simon Noël found there is not enough time between now and when voters cast their ballots.

"It can be said that there is an arguable public interest in having the Auditor General's report," he wrote in his decision, which he delivered Thursday morning in Toronto.

"It is a final report revised by her office, apparently with ongoing consultations with members of the executive [cabinet] currently seeking re-election.… However, the public interest is not better served in the event that a favourable but rushed decision cannot be enforced before May 2, 2011."

"The public interest is not better served by having the Court decide on the drop of a dime an important constitutional question."

Avaaz, an organization known for its petitions on democracy and rights issues, made its case Wednesday — just one day after filing an application with the court asking it to expedite the hearing on whether to make Auditor General Sheila Fraser release the report.

Avaaz wants Fraser to make public her report into the Conservative government's G8 summit spending before the election Monday, two and a half working days from when they argued their case for speeding up the court process.

A leaked early draft chapter of the report, obtained by The Canadian Press, said the Conservative government allegedly "misinformed" Parliament to win approval for a $50-million G8 fund that spread taxpayers' money on dubious projects in a Conservative riding.

But the most damning lines from that report didn't appear in a later draft, according to Conservative candidate John Baird, who was the government house leader in the last parliamentary session.

Ricken Patel, Avaaz's executive director, says Canadians have the smoking gun even if Fraser won't provide the fingerprints.

"There is a very good case that the auditor general's decision to withhold the G8 spending report is compromising the right to information guaranteed for all Canadians under the Charter," Patel said in a written statement.

"The judge did not rule on that issue today."

Noël noted he would have heard the case had it been made the week of April 11, when the story about the leaked chapter broke.

"[The decision] is about the responsible acquittal of judicial duties in interpreting the Constitution, something expediting the proceedings cannot accomplish," Noel wrote.

"If this application would have been served and filed in the week following April 11, 2011, the court would have dealt with the matter."

Fraser's lawyer had argued the lawsuit should have also targetted the attorney general of Canada, but left him off. Noël agreed, saying it's up to the attorney general to justify whether a law is constitutional.

Charter issue: Avaaz

Avaaz said Tuesday they've collected more than 80,000 signatures urging Fraser to release the report. The lawsuit argues Canadians need to see the report so they can have a meaningful discussion about an important issue, and that this is required under the Charter sections on voting and freedom of expression.

"The report alleges that the Harper government illegally handed $50 million in taxpayers' money to a Conservative riding and covered it up as G8 summit spending," Avaaz said in a news release.

"It's simply a question of truth," said spokeswoman Emma Ruby-Sachs on Tuesday. "Canadians want to know the answer to this question, they need to know the answer before they cast a vote."

Fraser maintains she can only table the report in a sitting House of Commons, which won't return until after the election.

"The Office of the Auditor General of Canada remains the custodian of its reports until they are presented to the Speaker of the House of Commons for tabling," Fraser said in a statement April 11.

She urged Canadians to wait for the complete version of the report, and said her office has launched an investigation of the leaks.

In a response to Avaaz's application filed by Fraser's office, her lawyer argues the public doesn't have the right to force her to release a document.

"The auditor general does not have a public duty to release her audit reports to the public," Todd Burke wrote. "The only duty owed by the auditor general under the Auditor General Act is to the House of Commons."

Burke also argued an expedited hearing wouldn't be fair.

"The auditor general and the public interest would suffer prejudice," he wrote. "The decision could have far-reaching effects on the auditor general's ongoing reporting obligations."

Leaks unprecedented

Parliamentary expert Ned Franks said Fraser's in a difficult situation with not only one unprecedented leak, but two.

"She's bound by the rules and traditions of the office and the rules and traditions of Parliament, which is that Parliament is the only appropriate recipient for a completed report," he said Tuesday.

"What I hope this organization does is keep pursuing the issue after the election so that it's clarified."

All the party leaders have agreed they want to see the report released.

This isn't the first time Avaaz has made headlines in Canada. Last fall, the group started an error-filled petition against right-wing Sun News Network's application to the CRTC for a broadcast licence.

The petition referred to the network by its "Fox News North" nickname, rather than its actual name, and said it was part of what Avaaz said was Harper's plan to "push American-style hate media" onto the airwaves. The network is actually owned by Québecor, although several former Harper staffers work for it.