Judge rules in Schreiber's favour - Macleans.ca

Judge rules in Schreiber’s favour

Says it would be a “travesty of justice” to surrender him before the inquiry has concluded

by

Judge rules in Schreiber's favourSo, anyone out there a fan of Garfield Minus Garfield? That’s sort of what we have in store for us this morning when the Oliphant show returns for a special one day performance.

Schreiber’s lawyer will be trying to convince the judge to order that his client “remain available in Ottawa” for the duration of the hearings — phase one and two, which would keep him from being hustled on a plane by the smiling but no-nonsense attaches from the German embassy until at least mid-June —  but Schreiber himself won’t be there. Which is disappointing, really — we were hoping for an encore of the famous Dance of the Seven Scandals, since he’s still supposed to undergo one more round of cross-examination by commission counsel — but that seems to be off the schedule for now.

So far, the other parties don’t seem to have responded to his request — although we’re sure a certain former prime minister would be waiting on the tarmac to wave goodbye — but the Attorney General has filed a reply; the government doesn’t seem to mind if the judge makes a recommendation that Schreiber be permitted to remain, but doesn’t think the judge, in his capacity as commissioner, has the authority to issue an order or directive.

Anyway, ITQ will still be making her way to Old City Hall to liveblogs the legal argument, so check back at 9:30 am for all the action!

9:15:38 AM
Good morning, Oliphantiacs! Man, it feels good to type that again. ITQ is back in her usual seat, surrounded by the usual thronglette of diehard inquiry junkies, and listening to the CPAC guys doing sound checks.

Ahh, this is more like it. Sorry, O’Brien trial — you just haven’t filled that Oliphant-shaped hole in my heart, although if you *do* end up giving me days of duelling expert testimony on the meaning of patronage, I may just learn to love again.

Anyway, everyone seems to be in excellent spirits today — the lawyers are mingling in the middle aisle, like kids just before school lets out for summer vacation, with the exception of Richard Auger, who is bent over his desk, shuffling intensely.

9:30:27 AM
All rise!

And a hearty welcome back to Evan Roitenberg, who gives the judge an update on Schreiber’s health — which isn’t good, apparently, he’s still ‘virtually housebound’. As it turns out, though, the commission counsel won’t need to re-examine him, so he can be dismissed as a witness right about – now. Somehow, I’m guessing that’s not quite as welcome a bit of news as it might be for most people under subpoena.

9:34:49 AM
A bit of a break in the action for some housekeeping business — entering a few new exhibits, some of which actually sound like they may be interesting, including one that apparently states that there is no record of RCMP officers having accompanied a certain former prime minister to various appointments, which – hey, doesn’t that contradict what that former prime minister said on the stand? The judge wonders whether we know if there *were*, but no longer *are* records, and Roitenberg tells him that it’s “not clear”.

More exhibits — including a raft of witness interviews, which are probably worth checking out when they go online, which – ITQ hopes, at least – should happen later today. The Charest interview is one, as is a previously unreferenced (or at least, unremembered by ITQ) interview with Stanley Hartt, yet another former Mulroney chief of staff.

That’s it for the evidence-wrangling, next up: Richard Auger.

9:42:07 AM
You know, this is turning out to be a surprisingly interesting morning, although not as interesting as I – and, apparently, the judge – thought for a split second when Auger made an offhand reference to yet another application for judicial review. After making sure that it had nothing to do with this commission, Oliphant confesses that his heart stopped for just a moment there. Mine too, judge, although in a not-altogether-bad way.

And yes, there *is* another challenge to that pending order of removal, as it turns out — filed in Ontario court yesterday, by the still inquiry-elusive Edward Greenspon, which Auger acknowledges isn’t *directly* material to his case; he just wants to make sure Oliphant has all the information.

And now, onto the legal arguments, which involve the multiple requests that Greenspon has made to the Attorney General – that would be Rob Nicholson – to suspend the order to surrender, and the minister’s remarkably consistent responses, which all seemed to hinge on the logic that Schreiber should be permitted to remain in Canada until he finishes testifying before the inquiry. Which he has — at least, as far as phase one goes, but phase two is a whole ‘nother ballgame. “That’s where we are today,” Auger concludes.

9:51:01 AM
Auger assures Oliphant that he’s not asking him to override the minister – who, he concedes, is ultimately responsible for deciding the fate of the order – but he points out that, as commissioner, he had the authority to grant full standing to Schreiber as a party to the inquiry, and as such, his ability to “fully participate” requires that he be permitted to be present for the second phase as well as the first. If he isn’t, Auger suggests, it could interfere with the integrity and “good work” of the commission, on grounds of natural justice, by depriving him of Schreiber’s doubtless invaluable input, as well as similarly depriving ITQ of the chance to liveblog him once more. (It’s possible the last bit was only audible in our head.)

Anyway, for all those reasons, he wants an order of direction that Schreiber be present until the end of part two, and that’s all he has to say.

9:55:52 AM
The judge wonders whether he – or Greenspon – has a date for when the latest application will be heard at the Ontario Court of Appeal, and whether there’s any chance that Schreiber would be removed from Canada before that happens, which Auger calls an “excellent question”. The two go back and forth on the nature of the stay, but Auger reminds him that we still don’t know what the minister’s position will be on the latest motion – he may seek to quash it, after all. Oh, and there’s no date for the judicial review as yet. It is what it is.

Oliphant asks if Auger or Greenspon are planning to use *his* ruling at the eventual hearing on judicial review, and Auger – who has a likeable candour, really – admits he doesn’t know.

9:59:03 AM
That’s all for Auger, which means that the Attorney General takes the stand — not the actual Attorney General, of course, but one of the little-heard-from lawyers: Landry, who will be presenting today’s argument in lieu of the absent Vickery, and who tells the judge that the minister isn’t ready to say whether or not he plans to enforce the order, but that he will take into account the fact that he agreed not to do so until after his testimony has been completed. That’s all we’re going to get out of him — believe me, Oliphant tried to make him give a simple yes or no question, and even he was defeated by the cheerful, yet unyielding noncommittalness of his response.

10:03:22 AM
Huh – I guess the judge is going to rule right away, without even taking a few minutes to consider the arguments. That’s efficient. Anyway, he seems to agree that it’s not his job to order the Justice department now, but he thinks it would be a “travesty” to keep Schreiber from the second phase of hearings — which start on June 15th, oh boy! — and says that in his view, Schreiber is entitled to stay in Canada to consult with his lawyers during the four days of hearings. If he was removed, his ability to communicate in a “meaningful way” would be diminished, if not “totally destroyed”. Given all that, he thinks surrendering Schreiber with just three weeks left would be a “travesty of justice” – but he has no power to order that he remain. It is, however, his “hope and expectation” that the minister will “see his way fit” not to surrender him until the inquiry has completed its work, and that would be his recommendation to the minister.

So — over to you, Rob Nicholson.

That’s his ruling, and that’s it for today’s hearing — we’re adjourned til next week, when we come back for final arguments on June 10th. Yay!