UPDATE: Check out the ITQ liveblog of the hearing here.
On Wednesday morning, the Oliphant Commission will open its doors to the public tomorrow for two days of public hearings on “standards of conduct,” which is not, somewhat to ITQ’s regret, a heated debate on whether counsel should be required to wear dress robes and powdered wigs, but to hear from the respective parties on what the Commissioner should take into account when the real hearings get underway later this spring.
It will come as no shock to anyone who has paid even the slightest bit attention to the ongoing saga of the Mulroney/Schreiber affair that the two main antagonists are at loggerheads over the scope of the inquiry, but what what may be somewhat surprising is where the government stands. Here’s a hint – at the moment, the position of the Attorney General of Canada seems to be lot closer to the man they’ve been trying, and failing to deport for the last decade or so than the one who used to inhabit the Prime Minister’s Office. Check out the official ITQ cheat sheet after the jump.
According to the terms of reference established by the Prime Minister last year, Commissioner Oliphant is required to make a finding on “whether there were ‘ethical rules and guidelines’ which related to the business and financial dealings and, if so, whether they were followed”, as well as assess whether there was “appropriate” [sic] disclosure and reporting of the dealings and payments”.
Last month, three of the four parties with standing at the hearings – Brian Mulroney, Karlheinz Schreiber and the Attorney General of Canada (the fourth, Fred Doucet, apparently has no particular preference one way or the other) – submitted outlines of the recommendations that each intends to make at tomorrow’s hearings of what factors Oliphant should take into account in determining whether the former Prime Minister’s conduct was “appropriate”.
In his initial – but not, as it turns out, only – written submission, Mulroney’s lawyer, Guy Pratte, makes the case that, as per the terms of reference, the Commissioner must “limit its inquiry to those matters of legitimate public interest”. Which, in his view, confines Oliphant to a sort of legislative time capsule, in which he would take into account only the 1985 Ethics Code, which “remains the only known public expression of an ethical standard which might have applied at the relative time.”
Schreiber, not surprisingly, has a markedly different opinion. His lawyer, Richard Auger, argues that Oliphant “be informed” by a much larger library of past and present legislation and legal writings: the Income Tax Act, the Parliament of Canada Act, the Conflict of Interest Code and the practice, conventions and Rules of the Quebec Bar,” as well as Revenue Canada’s Voluntary Disclosure Program, the findings of Justice W.D. Parker, who headed up the 1987 commission of inquiry that investigated conflict of interest allegations against Sinclair Stevens, the rules governing the export of military equipment, various Standing Orders, and Mulroney’s post-prime ministerial partnership agreement with Ogilvy Renault.
(It’s worth noting that Pratt also brings up the Stevens commission in his filing, but at cross purposes to Auger; instead, he cites the federal court decision that set aside the Parker Inquiry, in part because the commission had attempted to “develop a standard [for conflict of interest] at a point in time after the conduct being complained of” had occurred.)
So what, then, is the position of the Attorney General of Canada? In its carefully worded submission, the government reviews “the legislation, rules, guidelines and jurisprudence, which may potentially have application, depending on the evidence which will ultimately be put before the Inquiry”, which includes, but extends considerably further than the 1985 Conflict of Interest Code, the only relevant document, according to Mulroney.
Also on the AG’s list:
- the Parliament of Canada Act circa June 1993, which is when Schreiber claims to have entered into his deal with Mulroney, who was no longer Prime Minister at the time, but still a sitting MP
- the Financial Administration Act, which “governs the use of public monies and prohibits certain conduct that would lead to its improper allocation,” which applies to ministers as well as public servants;
- sections of the Criminal Code dealing with the corruption of public office holders;
- the Income Tax Act and the Voluntary Disclosure Program;
- and finally, the 1984 and 1988 versions of Guidance for Ministers, the later of which “warns ministers to be aware that the appearance [of unethical conduct] may also reflect badly on the Government’s reputation,” and suggests, as a “practical test” to ask whether the conduct of a minister or his staff “could cause ‘embarrassment or be difficult to justify to the public should it be raised in Parliament or reported in the press.’”
(The full submission, which clocks in at just over 12 megs, includes the text of all the above referenced material.)
Not surprisingly, the Attorney General’s suggested reading list went over like a lead balloon with Mulroney’s lawyer, who fired off a furious reply, in which he fumes that the “essential identical approaches of Mr. Schreiber and the Attorney General of Canada” were not only outside the jurisdiction of the commission, but would “violate [his] client’s procedural and constitutional rights” and would “amount to a breach of natural justice.” As yet, neither the AG nor Schreiber have replied in writing to Pratt’s latest salvo, but presumably, they plan on addressing his complaints tomorrow.
Which is a strategy to which ITQ gives a heartily self-interested ‘hooray’, since she plans on snagging herself a front row seat for the first liveblogging of the New Year. In the interim, feel free to join the pre-pregame show in the comment section