An anonymous account calling itself “The Findlay Files” posted an audio recording on Thursday. On it, a voice that sounds like B.C. Conservative Leader Kerry-Lynne Findlay tells her caucus that if one of them stepped aside as a legislator, she could give that person a role as a senior adviser in the same portfolio.
Findlay, who has no seat in the legislature, says the recording shows nothing criminal. She has called the allegation preposterous, described the audio as unverified, said it appears to have been captured at a July caucus meeting, and characterised what is on it as normal political discussion. The context around it is unhelpful to her. Reann Gasper resigned the Abbotsford-Mission seat and took a paid position as Findlay’s deputy chief of staff. Premier David Eby called the byelection the following day for September 26. And six Conservative MLAs have left the party in just two weeks. The B.C. RCMP say they are aware of the social media post and, as a matter of practice, will neither confirm nor deny whether anyone is under investigation.
Three criminal law provisions may apply here. They are found in Part IV of the Criminal Code.
Section 124 makes it an offence to sell or agree to sell an appointment to an office, or a resignation from an office, or a consent to either. Section 125 goes further and captures the negotiation itself: it is an offence to solicit, recommend or negotiate in any manner with respect to an appointment to or resignation from an office in expectation of a reward, advantage or benefit. Both carry a maximum penalty of five years in jail, and both can be prosecuted summarily.
Section 119 is the heavy one. It makes it an indictable offence, punishable by up to fourteen years in prison, for a member of a provincial legislature to corruptly accept money, valuable consideration, office, place or employment in respect of anything done or omitted in their official capacity. In the second half of the section, it also makes it an offence for anyone to corruptly give or offer such a thing to a member. It cuts both ways. The person making the offer and the person taking it are both caught.
Notice that the drafters thought about this specific situation. Sections 124 and 125 do not just cover buying your way into a job. They name resignations. Somebody, a very long time ago, anticipated that people would try to purchase their way into a seat by paying its occupant to vacate it.
Everything depends on “corruptly”
Section 119 does not prohibit giving an MLA a job. It prohibits corruptly giving an MLA a job in respect of something done in their official capacity. That element separates the offence from ordinary political life, and it is where a prosecution of this kind may succeed or fail
Consider how much lawful conduct would otherwise be criminal. Party leaders appoint MLAs to critic roles. Premiers appoint them to cabinet, which comes with a substantial pay increase. Defeated or departing politicians routinely land agency appointments, tribunal posts and staff jobs. A leader who tells a caucus member that stepping back from a portfolio would open up other work for them is describing something that happens constantly and lawfully.
What makes conduct corrupt is a state of mind, not an outcome. The Crown would have to prove, beyond a reasonable doubt, that the benefit was offered as a bargain — quid pro quo, this for that — with knowledge that the arrangement was improper, rather than as the sort of accommodation political organisations make all the time. That is a demanding standard to prove from a recording of a group conversation, particularly one in which the speaker is talking in hypotheticals about what she thought she might be able to do.
But the recording is certainly not the only possible evidence an investigating agency, Crown, or courts would consider in a case like this should charges be brought. And remember, corruption, like all things, can be proven through circumstantial evidence.
There is also the “in their official capacity” element in section 119. Is resigning a seat something an MLA does in their official capacity, or is it a personal decision to stop holding the office? The question sounds like hair-splitting. But hair-splitting is the bread and butter of lawyers.
Whether a seat is an “office”
Sections 124 and 125 both turn on the word “office.” Part IV defines an office as an office or appointment under the government, a civil or military commission, and a position or employment in a public department.
An elected seat in a legislative assembly is not obviously any of those. A member of the legislature is not appointed under the government; in a meaningful constitutional sense they exist to hold the government to account. There is a further clue in the drafting. Section 119 lists “the holder of a judicial office” and “a member of Parliament or of the legislature of a province” as separate categories, which suggests Parliament did not regard a legislative seat as an office in the ordinary sense — otherwise the second phrase would have been unnecessary.
No reported Canadian decision appears to apply section 124 or 125 to an elected seat. That cuts both ways: the point is open rather than settled for or against the Crown. But a prosecutor deciding whether to proceed would have to be satisfied there was a substantial likelihood of conviction on an interpretive question no court has answered, and that is precisely the kind of question that makes charge approval hard.
The provincial route is no easier. Section 255 of the B.C. Election Act prohibits inducements, and it defines inducement broadly enough to include an office, a placement or employment. But the prohibited purposes are exhaustively about voting: inducing someone to vote, to refrain from voting, to vote for or against a particular candidate or party, or rewarding them for having done so. Paying a sitting member to give up a seat is not on the list. There is also a gatekeeper; no prosecution under the Act can even be commenced without the approval of the Chief Electoral Officer.
Separately, the standing orders of the Legislative Assembly forbid offering members money or other advantage to promote any matter before the House. That is parliamentary privilege and internal discipline, not a criminal offence, and it is enforced by the House rather than the courts.
This has been tried before, and it failed
The closest Canadian analogue is recent and instructive.
In 2015, the Ontario Liberals wanted Glenn Thibeault to run in a Sudbury byelection, which meant persuading Andrew Olivier — who had run for the party previously and wanted to run again — to step aside. Olivier recorded his conversations. Party CEO Pat Sorbara and Sudbury businessman Gerry Lougheed were charged with bribery under section 96.1 of Ontario’s Election Act. At the time, the provision had never been prosecuted or judicially interpreted before.
The prosecution did not succeed. The Court directed verdicts of acquittal on every count, before the defence called a single witness, on the basis that no properly instructed jury could convict on the evidence the Crown had led.
The two counts failed for different reasons, and both are instructive. The Olivier count failed on a technical reading: “candidate” in the Election Act meant a candidate at an election to the Assembly, not someone seeking a party nomination. So Olivier was never a candidate and could not be induced to stop being one. The Thibeault count failed on something closer to first principles. The alleged inducement was an agreement to hire two of his staffers, and the judge held that arrangement simply could not be characterised as bribery. There was nothing dishonest, nothing clandestine, no undue reward.
The conduct in Sudbury struck a lot of people as unattractive. It did not fit the section, and where it arguably did, it was not corrupt.
Political conduct that strikes people as sleazy, and political conduct that satisfies the elements of a criminal offence, are two different things with only partial overlap. Public outrage is not an element of any offence. A prosecutor’s job is to match specific conduct to specific words in a statute, and when it does not cleanly fit the chances of a prosecution are slim.
Can the recording even be used
There is a big question here about whether the audio is even admissible in court or lawfully recorded.
It was, if whoever recorded it was in the room. Section 184 of the Criminal Code makes it an offence to intercept a private communication, but subsection 184(2)(a) exempts anyone who has the consent of the originator or of the intended recipient. Canada is a one-party consent jurisdiction. A participant in a conversation may record it without telling anyone, and the recording is not tainted by the fact that the others did not know.
The second question is harder, and it is the one Findlay’s use of the word “unverified” is aimed at. Before a recording goes into evidence, someone has to authenticate it. That means the Crown must produce evidence capable of supporting a finding that the recording is what it purports to be. Section 31.1 of the Canada Evidence Act puts that burden on the party tendering it, and section 31.2 adds a best evidence requirement satisfied by proving the integrity of the system that recorded or stored the file. At common law the courts look for a witness who can swear the recording fairly and accurately represents what happened, along with evidence about the device, the absence of alteration and the identification of the voices.
An anonymous upload with no identified source and no continuity satisfies none of that. There is a useful precedent in R. v. Andalib-Goortani, 2014 ONSC 4690, where a photograph of a G20 arrest that had surfaced anonymously on a website was excluded. The metadata had been stripped and the Crown could not establish the image had not been altered before it reached them. The same reasoning would apply, with more force, to an audio file in a period when synthetic speech is cheap and convincing. A recording released by an account nobody can identify is a political document. It is a long way from being an exhibit.
That 2014 case was also well before the advent of AI and deepfakes.
What would actually have to happen for there to be criminal charges
For this to become a criminal case rather than a political one, the RCMP would have to investigate, identify and interview whoever made the recording, obtain the original file, establish who was in the room and what was actually said, and then satisfy the B.C. Prosecution Service that there is a substantial likelihood of conviction on an offence that has almost never been prosecuted against elected office in this country. Only then would a charge be laid, and only then would any of it be tested.
You kniw you're winning when the opposition is willing to fabricate objections.