MacKay says he has no knowledge of alleged financial offer to Cadman

March 1, 2008 - 13:47

Tara Brautigam, THE CANADIAN PRESS

ST. JOHN'S, N.L. - One of Prime Minister Stephen Harper's top cabinet ministers says he knows nothing regarding allegations the Conservatives offered a dying MP a lucrative insurance policy in exchange for his support in a confidence vote.

Defence Minister Peter MacKay, who was deputy Conservative leader at the time of the alleged offer to the late Chuck Cadman, said Saturday he has no knowledge of it.

"I don't know anything about how this has come about. Certainly it was something that I was not involved with," said MacKay, who was in St. John's, N.L., to make a funding announcement.

"I think it's sad, quite frankly, that this seems to have come up. It's very unfortunate."

Cadman's widow and daughter allege two Conservative representatives offered him a $1-million life insurance policy to gain his support in a vote on a May 2005 confidence motion.

The former Tory MP - who had left the party to sit as an Independent MP - did not vote with the Conservatives, allowing Paul Martin's Liberal government to survive another eight months.

Cadman died of cancer two months after the vote.

Dona Cadman, a Conservative candidate, has said her husband was livid at the alleged offer, which she considered a bribe.

On Friday, a three-year-old radio interview surfaced that lent credence to the Cadman family's claims.

In a June 12, 2005, interview on Vancouver radio station CKNW, Cadman told the Globe and Mail's Dan Cook that the Tories did, in fact, make him financial offers days before the crucial vote.

"There was certainly some, you know, some offers made and some things along those lines about not opposing me and helping out with the finances of the campaign and that sort of thing. But, again, you know, that's all part of the deal that goes on. It's what happens, especially in a minority situation," Cadman says.

A tape released Thursday suggests Harper, then Opposition leader, not only knew two party officials allegedly made an "offer" to Cadman, but also gave it his blessing.

Author Tom Zytaruk taped an interview with Harper in September 2005 for his soon-to-be-released biography of Cadman. On the scratchy 2:37 recording, Harper confirms party officials made a financial appeal to Cadman.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Chuck Cadman -- What Really Happened

There's something wrong with the story.
In a biography of Chuck Cadman, due out in two weeks, his wife Dona says he told her two Conservative representatives offered him a $1-million life insurance policy and other inducements in exchange for his tie-breaking vote against the minority Liberal government's May 2005 budget.

But Chuck Cadman, a man of unquestioned integrity was dying. A life policy cannot be bought for a dying man -- it just can't be done. A straight bribe of $1,000,000, with a weak cover as 'life insurance' is out of a bad novel -- it's just not plausible. So what's left?

The representatives tried to trick Cadman on the theory once he's dead he'll never know there was no policy? Hardly; even if Cadman was corrupt he's want proof of the policy.

Cadman (or his wife) made up the story -- and remember his wife is a Conservative. Why? There's no possible upside to such a lie. The answer doesn't rest here.

Or ... a dying man of great integrity, in extremis, and two political operators on a fools errand (and the Prime Minister's much ballyhoo'd comments suggests the effort was hopeless) misunderstood each other. Well, that sounds about right. Whatever was on offer -- and probably something was, although likely we'll never know what it was -- these people from different worlds just failed to communicate.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Journalist-Confidential Source Relationship or Journalist-Criminal Wrongdoer Relationship

Friday's Court of Appeal decision in R. v. The National Post, 2008 ONCA 139 was a decisive blow to the concept of journalist-confidential source privilege.

Put briefly, a search warrant issued for material that would identify the source of certain information given to the National Post. The information, which may or may not have been false, suggested impropriety by the then sitting Prime Minister.

The Court, while declining to say journalist-confidential source privilege would never apply, held that the need for law enforcement greatly over weighed any benefit to society arising from keeping confidential sources confidential.
The Court said "the considerations favouring disclosure of the document and the envelope sharply outweigh those favouring confidentiality.  Indeed, as we view the case, the law enforcement interest in disclosure is overwhelming."

A sense of the issues involved may seen from the Court asking whether the relationship should be characterized broadly as a journalist-confidential source relationship, or more narrowly as a journalist-criminal wrongdoer relationship. The Court seems to have supported the broader view but even considering the question in this way is suggestive.

An application for leave to appeal to the Supreme Court may well follow.

Some of the Court's comments follow:

"[115]      The document and the envelope are not merely pieces of evidence tending to show that a crime has been committed.  They are the very actus reus of the alleged crime.  For the purpose of demonstrating that a crime was committed – the crime of uttering a forged document to the National Post – evidence is not available from another source.  Gallant so testified in the information to obtain, and the respondents did not suggest otherwise.  Moreover, nothing in the amplified record points to any other avenue of investigation of this discrete offence.  Therefore, without the document and the envelope and the ability to conduct forensic testing of them there can be no further investigation, no ability to get at the truth. 

[116]      We do not diminish the press' important role in uncovering and reporting an alleged wrongdoing.  But in our society it is the police who are charged with the crucial role of investigating and prosecuting crime.  And, to paraphrase what White J. said in Branzburg v. Hayes at p. 692, it is not necessarily better to write about crime than to do something about it.

[117]      And this is no ordinary crime.  This is an especially grave and heinous crime.  Assuming the document was forged, either the forger or some other person sent it to the National Post to create controversy and undermine the authority of a sitting Prime Minister of Canada.  The National Post itself admitted that if the document was forged, it would be evidence of a criminal conspiracy to force a duly elected Prime Minister from office.

[118]      Moreover, while the law enforcement interest is overwhelming, the press' legitimate interest in confidentiality is attenuated.  Although, in pursuit of their constitutional right to gather and disseminate the news, journalists are entitled to protect their sources, that entitlement loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.  The press, like any one else, should have "an interest in seeing that crimes are investigated and prosecuted": see Lessard at 535.  Society expects as much.  Instead of furthering that interest, however, the respondents are shielding a potential wrongdoer from prosecution for a serious crime by refusing to deliver to the authorities the items representing the actus reus of the offence. 

[119]      McIntosh himself recognized that there must be at least some limits on the press' entitlement to protect the confidentiality of its sources.  That is why he told X that his promise of confidentiality would remain binding only so long as he believed that he was not being misled.  However, once the court concluded that there were reasonable and probable grounds to believe the document was a forgery, McIntosh could not arrogate to himself the right to decide whether X was a wrongdoer."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Constitutional Exception to a Mandatory Minimum Sentence is Not Available to Sentencing Court

Constitutional Exception to a Mandatory Minimum Sentence is Not Available to Sentencing Court

 

Today's Supreme Court of Canada decision in R. v. Ferguson, 2008 SCC 6 makes it clear that a constitutional exception to a mandatory minimum sentence is not available to the sentencing Court.  The reasoning of the Court is especially topical in light of Robert Latimer's day release – moreover, the language of the Court makes clear that deference to the legislature is appropriate for mandatory sentencing matters suggesting that most mandatory sentencing reforms will meet approval of the Court.

 

If a mandatory minimum sentence is unconstitutional then the appropriate remedy is to strike down the provision; reading discretion into the sentencing process is an unwarranted intrusion into the legislative sphere.

 

The facts in Ferguson are straightforward.  During an altercation with a detainee held in a cell at an RCMP detachment, the accused, an RCMP officer, shot and killed the detainee.  The accused was charged with second degree murder but was convicted by a jury of the lesser offence of manslaughter.  Notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm, the trial judge imposed a conditional sentence of two years less a day.  He granted the accused a constitutional exemption from the four year sentence because, in the circumstances of this case, he found that the minimum mandatory sentence constituted cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and Freedoms.  The majority of the Court of Appeal overturned that sentence and held that the mandatory minimum must be imposed.  The Supreme Court of Canada agreed.

 

The Court found no basis for concluding that the four year minimum sentence prescribed by Parliament amounts to cruel and unusual punishment.  In the absence of any Constitutional violation, the trial judge's proper course in the circumstances was to apply the four year minimum sentence. 

 

In rejecting the concept of a constitutional exception to the mandatory minimum imposed by Parliament the Court said:

 

 

[54]                        The intention of Parliament in passing mandatory minimum sentence laws, on the other hand, is to remove judicial discretion to impose a sentence below the stipulated minimum. Parliament must be taken to have specifically chosen to exclude judicial discretion in imposing mandatory minimum sentences, just as it was taken to have done in enacting the rape shield provisions struck down in Seaboyer.  Parliament made no provision for the exercise of judicial discretion in drafting s. 236(a), nor did it authorize any exceptions to the mandatory minimum.  There is no provision permitting judges to depart from the mandatory minimum, even in exceptional cases where it would result in grossly disproportionate punishment. Parliament has cast the prescription for  the minimum four-year prison sentence here at issue in clear unambiguous terms. Parliament must be taken to have intended what it stated: that all convictions for manslaughter with a firearm would be subject to a mandatory minimum sentence of four years imprisonment.   The law mandates a floor below which judges cannot go.  To permit judges to go below this floor on a case-by- case basis runs counter to the clear wording of the section and the intent that it evinces.

 

[55]                        In granting a constitutional exemption, a judge would be undermining Parliament's purpose in passing the legislation: to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by Parliament.  The discretion that a constitutional exemption would confer on judges would violate the letter of the law and undermine the message that animates it.

 

[56]                        It is thus clear that granting a constitutional exemption from a mandatory minimum sentence law that results in an unconstitutional sentence goes directly against Parliament's intention. To allow constitutional exemptions for mandatory minimum sentences is, in effect, to read in a discretion to a provision where Parliament clearly intended to exclude discretion. If it would be inappropriate to read in such a discretion under s. 52, then necessarily it would be inappropriate to allow judges to grant constitutional exemptions having the same effect under s. 24(1). It cannot be assumed that Parliament would have enacted the mandatory minimum sentencing scheme with the discretion that allowing constitutional exemptions would create. For the Court to introduce such a discretion would thus represent an inappropriate intrusion into the legislative sphere.

Whiplash Decision from British Columbia

Farrant v. Laktin 2008 BCSC 234 is an important motor vehicle whiplash decision released today. The discussion of Resurfice is especially useful.

The case has an extensive discussion of Resurfice and its application to a Plaintiff's case; here the claim involved soft tissue injuries which apparently aggravated symptoms associated with long standing low back degenerative disc disease. The soft tissue injuries were is found to have been modestly symptomatic but not disabling before the accident.

The  Plaintiff developed a disabling chronic pain pattern in his low back after the accident. The Plaintiff ultimately lost on the causation issue.

The case is worth review in the context of whiplash. In all likelihood the Plaintiff would have won this case pre-Resurfice.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Conrad Black

The decision is out and Conrad Black won't get a stay pending appeal. He's off to prison likely to stay for six years. The real blow is the Court's view that there isn't really a solid appeal -- to my thinking there is a decent shot but not more than a one in three chance. A truly amazing fall from grace, almost so theatrical that it wouldn't be believable as a movie.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Can an Arbitration Clause be lost because of litigation?

What happens if a matter is litigated and, at some time during the litigation, a party realizes that there is an arbitration clause that may apply to the matter being litigated?

Surprisingly this is not a matter dealt with significantly in case law.

Today's Superior Court decision in
Engels v. Merit Insurance Brokers Inc., 2007 CanLII 6455 dealt squarely with this question. In Engels, the defendant had filed a notice of intent to defend and served a jury notice and then sought to rely on an arbitration clause to stay the litigation.

Subsection 7(2) of the Arbitration Act, 1991, S.O. 1991, c. 17, provides that the court may refuse to stay the proceedings where the motion was brought with undue delay. This suggests that a party who relies on an arbitration clause should advance that position at the earliest possible opportunity.

The Court found that the clause in this matter was not to be enforced writing:

"It is not appropriate to ride the litigation horse down the road until it become inconvenient to do so and then try to mount the arbitration horse. "
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

First Knut and Flocke, now Wilbaer

STUTTGART, Germany - First Knut and Flocke, now Wilbaer.

A German zoo has announced that one of its polar bears gave birth to a male cub on Dec. 10. Germany's latest high-profile bear arrival follows Berlin zoo star Knut and Nuremberg celebrity Flocke.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

High court won't hear appeal over disputed Tory nomination process in Calgary

High court won't hear appeal over disputed Tory nomination process in Calgary

February 28, 2008 - 11:24

THE CANADIAN PRESS

OTTAWA - Disgruntled Tories who challenged the acclamation of MP Rob Anders as a candidate in the riding of Calgary West ran out of legal options Thursday at the Supreme Court of Canada.

The high court refused to hear their appeal in the case. As usual in such cases, the court gave no reasons for its decision. The case began when 11 Tories took legal action against party brass after Anders was acclaimed in 2006.

They compared the nomination process to a game of charades and accused the party and the riding association of changing procedures in order to keep Anders in Parliament.

They also argued that the party broke its own nomination rules by not widely advertising important dates or adequately searching for qualified candidates.

The Court of Queen's Bench upheld part of the complaint, saying it was subject to judicial review.

Justice Allen Sulatycky reluctantly concluded the courts had the jurisdiction to review the political process which saw Anders win the nomination unopposed.

"My natural inclination is to keep the political and judicial processes ... as distinct and separate as possible," Sulatycky said.

He said even though the power to nominate candidates lies ultimately with a party leader, case law has determined political parties are legal entities subject to court intervention.

"It would be inconsistent for me to find political parties are legal entities ... and to find at the same time that they are sheltered from judicial review," he said.

But the provincial Court of Appeal overturned that ruling, saying public law does not apply to private bodies such as political parties.

It said the Conservatives had the right to amend or abbreviate procedures under their own constitution as they see fit.

The Supreme Court's refusal to review that decision ends the matter.

Anders was first elected in 1997 as a member of the Reform party. He has won re-election three times, piling up bigger majorities each time.

However, he has also been dogged by controversy.

In 2001, he was the only MP to vote against making Nelson Mandela an honorary citizen of Canada. He called Mandela a communist and a terrorist and his comments were labelled "stupid" by then-prime minister Jean Chretien.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Adlai Stevenson

"There is nothing more horrifying than stupidity in action."
-Adlai E. Stevenson, American politician and diplomat (1900-1965)

Right to Counsel

The recent Court of Appeal decision in R v Smith, 2008 ONCA 127 emphasizes the importance of the right to counsel.



The accused was arrested for dangerous driving. The police quickly concluded that he was involved in a home invasion involving a firearm. Despite repeated request by the accused the police did not allow the accused to speak to counsel -- the police were concerned that any use of a telephone would lead to the firearm (not then recovered) being hidden.



The police continued questioning the accused regarding the firearm even though he had asserted a right to counsel and not been allowed to call a lawyer.



The decision deals with several other issues but for this note the Court's ruling on the duty of police to cease questioning is key.



In addition to imposing a duty on police to inform a detainee of the right to counsel and to afford him or her a reasonable opportunity to exercise that right, the Charter requires police "to cease questioning or otherwise attempting to elicit evidence from the detainee" until that opportunity has been provided.

Extension of Time to Appeal

The criteria an applicant must establish to obtain an extension of the time to appeal in a criminal matter are well established:

1. The applicant must show that there was a bona fide intention to appeal the sentence within the appeal period;

2. The applicant must account for or explain the delay in appealing; and

3. The applicant must show that the proposed appeal has merit.

R. v. Menear (2002), 162 C.C.C. (3d) 233 at para. 20 (Ont. C.A. ).

Today's Court of Appeal decision in  R. v.  Garland, 2008 ONCA 134 deals with an application to extend the time to appeal a dangerous offender designation a decade after it was made. Remarkable though it seems, the application was allowed as the explanation for delay was acceptable to the Court. In effect the Court accepted an ineffective assistance of counsel argument.

The unusual factors the Court considered are set out below:

Explanation for the Delay

[5]               The delay is lengthy – ten years. In my view, however, Mr. Garland has satisfactorily accounted for it. The explanation lies in the conduct of his lawyers. He had several lawyers over the period though he did not instigate any of the changes of solicitor. Whether by reason of negligence, incompetence, or worse, his lawyers misled him and let him down terribly. This is the chronology of what happened.

[6]               Mr. Garland's first lawyer, who acted for him at the dangerous offender hearing and until at least November 2000, represented in correspondence to Mr. Garland that he would deliver an opinion letter and notice of appeal to the Legal Aid Committee and would appear before that committee. The lawyer's itemized account to Legal Aid shows that he did not write an opinion letter or prepare a notice of appeal.

[7]               Mr. Garland's next lawyer did write an opinion letter for Legal Aid in which he said the appeal had merit. However, apparently he was too busy to carry on with the file. In late 2004 he transferred the file and the legal aid certificate authorizing an appeal to a third lawyer, who returned the file a few months later as she was no longer practising law.

[8]               In 2005 Mr. Garland's file ended up with a fourth lawyer who, apart from meeting with Mr. Garland, did nothing on the file for nearly two years.

[9]               Finally, and fortuitously for Mr. Garland, Ms. Kingston took over the file in 2007.

[10]          As this chronology demonstrates, Mr. Garland's file has languished for ten years, not because of his conduct, but because of the conduct of his lawyers. The Crown accepts this, but suggests that Mr. Garland's remedy lies with a complaint against his lawyers to the Law Society. The relief that might flow from such a complaint strikes me as a hollow remedy for a man sitting in jail who merely wants an opportunity to appeal his indeterminate sentence.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Well, No Election ...

Looks like the budget will pass and with that, the compromise on Afghanistan and the rapid passage of the crime bill in the Senate, election fever will abate a bit. That said, a minority can fall any time so "not necessarily an election, but an election if necessary!"

Election?

The rumor mill is running double speed about whether tonight's budget will trigger a Federal election. Regardless of what happens tonight, there will be a strong Liberal presence in the new House. I think of people like Colleen Conway, a long term Liberal now at home with her new child. She, and millions like her, will vote Liberal to ensure Liberal values are properly reflected in the government.

Novation

Last week's decision in Weyerhaeuser Company Limited v. Hayes Forest Services Limited, 2008 BCCA 69 dealt with the concept of novation.

The concept is sometimes used as a 'Hail Mary' defence when a party, seeking to avoid contractual liability, claims novation has occurred and the party is relieved of liability. In reality, of course, novation is very rare.

The modern concept of novation is described by Wilson J. in National Trust Co. v. Mead, [1990] 2 S.C.R. 410 at 426:

"A novation is a trilateral agreement by which an existing contract is extinguished and a new contract brought into being in its place. Indeed, for an agreement to effect a valid novation the appropriate consideration is the discharge of the original debt in return for a promise to perform some obligation. The assent of the beneficiary (the creditor or mortgagee) of those obligations to the discharge and substitution is crucial. This is because the effect of novation is that the creditor may no longer look to the original party if the obligations under the substituted contract are not subsequently met as promised."

The Court in Weyerhaeuser found that novation did not occur but in so doing described the concept in some detail. The description is useful.

"1. The new debtor must assume the complete liability;

2. The creditor must accept the new debtor as principal debtor and not merely as an agent or guarantor; and

3. The creditor must accept the new contract in full satisfaction and substitution for the old contract. "

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Leaving Yellowknife

After spending four days I have finally left Yellowknife. The weather was kind, through the stay the temperature was seldom below - 10 although on the day I left it dropped to - 22 on the way to - 28.

My sense of the town is limited by my brief stay. I saw little outside the city but dog sledding on Kam and Grace Lake I did get a feeling of the grand isolation of the sub Arctic. It is a vast and still wild land, one of extremes of climate and extremes of people.

In the city there is a vibrant cultural life with concerts, theater and fine dining (wines are widely available that have to be special ordered in Toronto) and yet there are addicted street people passed out in the malls, ignored by all walking by.

All that said, I was sorry to leave. The NWT is a place worth coming to.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Budget Predictions ...

Re-soled shoes for Flaherty in flinty budget that will spend to paint Tories green

Sun Feb 24, 4:03 PM

By Julian Beltrame, The Canadian Press

For months Prime Minister Stephen Harper has been preparing for an election campaign based on frugal stewardship of the country as it heads into an economic slowdown.

But just in case anyone missed the prime minister's preaching the virtues of parsimony, Finance Minister Jim Flaherty will drive the point home Monday by forgoing the usual new shoes for budget day and head to the Healthy Feet shoe repair shop in downtown Ottawa to pick up a pair of his re-soled brogues.

And if the point still eludes voters increasingly concerned about the economy, a camera crew from Conservative party campaign headquarters will be there among the news photographers to capture the images of a flinty finance minister scaling back in sympathy with any voter who might be experiencing tough times.

Flaherty is widely expected to introduce a budget Tuesday that will attempt to make a virtue of slowing growth. It will likely be high on rhetoric about encouraging Canadians to save and companies to invest, but low on the kind of big-ticket items that have characterized his past offerings.

It is also expected to be his last budget before an election.

The finance minister has spent the last few weeks crying poor, and picking fights with both federal and provincial Liberals about proposals he says would send the government into deficit.
Austerity will be central in Tuesday's budget.

Flaherty is expected announce another round of program review that will compel departments to find new cuts to their spending.

"You don't throw money around when times are tight ... especially now in a time of economic slowdown," Flaherty said in his last meeting with reporters before the House shut down last week.

But there is a widespread belief that Flaherty has more room to act than he lets on. Economists point to the $7 billion surplus on the books this year that Flaherty earmarked for debt reduction in October, plus a $3 billion contingency fund and a $1.6 billion planning surplus. And any more money the program review can scare up.

"I find it hard to believe we're going to have a budget that could possibly precede an election and have virtually nothing in it," said TD chief economist Don Drummond.

And as one Conservative insider put it: "Jim always likes to have a surprise or two in his budgets."

Those surprises are expected to include:
-Measures to encourage Canadians to save, either through an enriched RRSP program, an investment income deduction of up to $1,000, or an investment savings fund that would allow people to park and grow savings withdrawn upon retirement.
-A request for proposals for a carbon capture or sequestration pilot project in the Alberta tar sands.
-An extension of the lake clean-up initiatives he announced in the last budget, as well as funds for clean water projects. Much of this will build on programs aimed at winning votes in Ontario.
-Revamped and enriched programs to encourage research and development, such as the Science, Research and Experimental Development programs.

As well, Flaherty will likely sweeten the working tax income benefit, designed to increase incentives for low-income individuals to enter or stay in the work force.

He will also opt for a renewed and enhanced commitment to post-secondary education funding.

The merit of most of the initiatives is that they will cost the government little or will only hit the treasury in later years, when the economy is forecast to recover and government revenues rebound.

In his last round of consultations, Flaherty was also encouraged to set down markers for personal income tax reductions that would be realized in future years. He and previous governments have followed that route with corporate taxes.

Several insiders say Flaherty is likely to use a portion of his surplus for personal tax cuts by sweetening the Tax Back Guarantee from interest savings on debt, and for a one-time infrastructure fund that provinces can access.

Paying down the debt now, given the slowing state of the economy, would be a major mistake, said Jayson Myers, head of the Canadian Manufacturers and Exporters.

"There's far better ways of using the surplus," he said. "We know we need to improve infrastructure, we know we need to improve the border, we know we need to replace coal-based generating stations. These are all major things the government should be taking the lead on".
The wish list from those outside the Finance Department is long.

The NDP has asked the government to roll back business tax cuts and use the savings to bolster the beleaguered manufacturing sector. There is no chance of a tax-cut rollback.

And the left-leaning Canadian Centre for Policy Alternatives would go even further. On Monday, they plan to release their annual "alternative budget" calling for a rollback of $190 billion in tax cuts already announced and for the money to go toward combating global warming and poverty.
For Flaherty - who has vowed he will not be the finance minister who drags the government back into deficit - the relevant numbers are $1.4 billion and $1.3 billion.

Those are the surpluses forecast for the upcoming 2008-09 budget year and for next year. And if those numbers hold up, he can do very little.

Yet, Flaherty is expected to make a show of pulling some rabbits out of the tiny hat the slowing economy - and his previous spending - have handed him.

Almost certain to be included in the budget is an extension of the manufacturers' write-off on investments in machinery and equipment, at a cost of about $1.3 billion over five years.
The mining sector will get an extension of the exploration tax credit scheduled to expire March 31.

In his last round of consultations, Flaherty was also encouraged to set down markers for personal income tax reductions that would be realized in future years. He and previous governments have followed that route with corporate taxes.

Flaherty will also likely "re-announce" many of the measures he introduced in his Oct. 30 mini-budget, and the $1 billion community relief fund that was intended to be a centre-piece of this budget but was split off into a separate bill.

"They will resurrect many of the things they've announced in the past and make a show of being good stewards of the economy and say all they've already announced is stimulating the economy," said former finance official Len Farber.

But the meal is unlikely to satisfy, said Farber, now a tax analyst with Ogilvy Renault.
"It'll be a thin budget and it will be noticed."