07/20/2015 05:16 EDT | Updated 08/20/2016 05:59 EDT

Should the NDP Be Allowed to Run This Election?

NDP leader Thomas Mulcair is already taking measurements for new drapes in the Prime Minister's Office, but he might have a more pressing matter to deal with: whether he should even be allowed to contest this fall's election.

This post has been updated to correct and clarify the following:

-A previous version of this post stated funds used for NDP satellite offices were spent on partisan activities, which could not be verified.

-A previous version of this post did not mention the NDP has challenged the House of Commons' Board of Internal Economy finding that satellite office funding was improper and related order of repayment. The NDP has made an application with the Federal Court contesting the ruling and penalty.

-A previous version of this post stated that former Deputy Speaker Joe Comartin was one of three NDP members who owed a combined $190,000 in repayments relating to satellite offices, when it is the NDP House Leader's office that owes this amount.

-Some of the language describing certain activities as 'illegal', 'partisan' or 'scam' has been changed or removed for accuracy or clarity.

- On July 21 2015, the day after this blog was published, Elections Canada announced that its investigation into the by-election mass mailing was complete and no charges would be laid over the mailings.

The author of this blog apologizes for these errors.

NDP leader Thomas Mulcair is already taking measurements for new drapes in the Prime Minister's Office, but he might have a more pressing matter to deal with: whether he should even be allowed to contest this fall's election.

The NDP have been accused of abusing public money twice by improperly using their House of Commons privileges for unauthorized reasons. The first amount, approximately $2.7 million, is related to the illegal funding of staff at "satellite offices." The NDP used public funds to pay for employees outside Ottawa, which the Board of Internal Economy ruled broke Commons' bylaws, ordering the repayment of funds. The NDP claimed that process wasn't fair and is challenging the Board's ruling in Federal Court and as such, has not repaid the contested amount.

The second amount, approximately $1.3 million, concerns byelection mass mailings. All MPs are given "franking privileges" which allow them to communicate with Canadians via mail on matters of national importance in the performance of their duties as MPs. The NDP used their House of Commons resources to mail Canadians requests to donate and volunteer for the New Democrats, and directed them to their party's website. Elections Canada has already launched an investigation into these illegal mailings, since there is the potential of receiving an unfair election advantage by breaking the rules.

The all-party Board of Internal Economy, backed by non-partisan House of Commons staff, found that the cost for the two wrongdoings is a staggering $4 million. The NDP and leader Thomas Mulcair do not dispute that they committed either of these acts, but they claim that they were unfairly judged by a "kangaroo court" that overruled the House of Commons' administrative staff approval of those offices and mailings. (The non-partisan Clerk of the House of Commons denies that her staff ever gave such approval.)

That $4 million price tag risks becoming a larger issue as we approach this fall's federal election, and the question remains whether the New Democrats should even be allowed to contest the nomination with such a large unpaid balance owing to Canadians.

Section 502 of the Canada Elections Act describes a number of "corrupt" and "illegal" practices. A person found guilty under that section would be ineligible to be a candidate in the election. Corrupt practices include voting more than once or impersonating an election official, while illegal practices include prohibited forms of communication or making or compelling a false oath. While it does not specifically list "theft" as an illegal practice, what the NDP did was clearly illegal: they contravened existing, obvious, and publicly-accessible bylaws related to the administration of the House of Commons, which are set in accordance with the Parliament of Canada Act.

The purpose of punishing candidates who commit corrupt or illegal acts is to ensure that the electoral system retains integrity and has a level playing field for all candidates. By abusing public funds, they have gained an unfair advantage compared to other candidates who did not have access to or did not break the rules. By willfully abusing their House of Commons resources, the NDP may have made more contact with more Canadians than the Liberals and Conservatives: they mailed over two million households with their party branding, and could have made contact with thousands of eligible voters through their satellite offices. From the data collected from those mailings and offices, they also likely received more donations, more volunteers, and more contact information (for future solicitations) than the parties that followed the rules. Independent candidates, Conservatives, Liberals, and even fringe parties (the Bloc, the Green Party, etc) cannot compete with the advantage the New Democrats received by abusing office budgets and mailing privileges they shouldn't have.

Finally is the fact that the NDP continue to receive an advantage by not paying back the $4 million. $4 million sitting in a bank account making even 1 per cent interest per annum would still be $40,000 per year. Those are the proceeds of illegal activity that the NDP can continue to use on pre-election resources.

To be fair, not every NDP MP would be disqualified. Only 68 NDP MPs participated in satellite office funding of employees, and no candidates (who are not currently sitting MPs) have been accused of doing the same. Unfortunately, that would mean most of the New Democrats' leadership would be wiped out, including leader Thomas Mulcair and former interim leader Nycole Turmel, who owe a combined $408,000, and the Opposition House Leader's office, which owes $190,000.

The NDP should do the right thing and pay back the money they owe Canadians. But they should not be allowed to get off scot-free and contest the next election as if nothing happened.