Del Mastro appeal in court Thursday

Former Peterborough MP Dean Del Mastro’s second appeal of his conviction of election fraud charges will be heard before the Ontario Court of Appeal in Toronto on Thursday.

His lawyer, Scott Fenton, will be expected to argue that Del Mastro should be acquitted.

Failing that, writes Fenton in a court document, then Del Mastro should be allowed to skip jail and serve a non-custodial sentence instead.

“The imposition of a jail sentence was unreasonable, harsh and excessive in all the circumstances,” Fenton wrote.

Del Mastro has already served seven days of a 30-day jail sentence meted out in Peterborough court in June 2015.

He served one night at Central East Correctional Centre in Lindsay in June 2015, and was released on bail pending his first appeal.

After that appeal was lost in Oshawa court, in April 2016, Del Mastro returned to jail in Lindsay for six days and was released pending this new appeal.

In his written response, Crown attorney Croft Michaelson writes that the jail sentence was not unreasonable at all – on the contrary, it is “owed deference.”

“Del Mastro cheated in a federal election,” writes the Crown. “The sentence imposed – and in particular, the term of incarceration – reflects that.”

In the fall of 2014, Del Mastro was found guilty in Lindsay court of violating the Elections Act during his 2008 re-election campaign. He was convicted of having overspent on his campaign and of having taken steps to cover it up.

He was the MP for Peterborough at the time, leaving the Conservative caucus to sit as an independent while his case moved through the courts. He stepped down less than a week after the conviction.

More than six months later, in June 2015, Justice Lisa Cameron sentenced him to a month in jail plus four months of house arrest.

The trial hinged on a $21,000 personal cheque that Del Mastro had written to Holinshed, his voter-calling firm.

The president of Holinshed, Frank Hall, testified at trial that the cheque was meant to cover voter-calling. He also said Del Mastro had asked him to backdate the invoices so it appeared the work had been done outside the election period.

But Fenton will argue that Del Mastro never got the full extent of voter-calling services from Holinshed that he’d ordered.

In other words Del Mastro paid for services not rendered – and that shouldn’t count against him.

Yet the Crown writes that this doesn’t matter – the $21,000 payment made to Holinshed constitutes an election expense, no matter how much value Del Mastro got out of it.

Meanwhile Fenton also argues that the trial judge allowed herself to be swayed by Del Mastro’s failure to call three witnesses who might’ve corroborated his story about how the campaign never used Holinshed’s voter-ID services.

Doug Del Mastro (a brother), John McNutt and Bruce Fitzpatrick were all campaign volunteers in 2008, and might’ve backed up Del Mastro’s testimony about how they had their own voter lists.

Yet the Crown and defense had agreed at trial that McNutt wouldn’t testify, Fenton writes.

And it’s unfair to disbelieve Del Mastro simply because his brother Doug and Bruce Fitzpatrick weren’t called to the stand to corroborate his testimony, argues Fenton.

But the Crown writes that the trial judge disbelieved Del Mastro because she found “inconsistencies and improbabilities” in his testimony – not because there was a lack of witnesses to corroborate his story.

The second appeal begins at 10 a.m. Thursday at Osgoode Hall in Toronto.