Tuesday, February 19, 2008

OTTAWA - Today, Democracy Watch released details about the application it has filed in Federal Court challenging the precedent-setting ruling issued on January 7, 2008 by the federal Conflict of Interest and Ethics Commissioner Mary Dawson which concluded that, even when the Prime Minister’s and Cabinet ministers’ own actions and the actions of one of their close associates are in question, it is fine for them: to choose whether a judicial inquiry will take place; to set the scope of the inquiry; to choose the inquiry commissioner(s) who will judge them, and; to control a legal proceeding against another person who has made allegations about them. (To see the Ethics Commissioner's ruling, click here (PDF format) -- To see Democracy Watch's court application, click here (PDF format) -- NOTE: the case file number has changed since the application was filed and is now A-174-08).

Even Prime Minister Stephen Harper has acknowledged, and stated publicly, that he and all members of his government are in a conflict of interest concerning the Brian Mulroney-Karlheinz Schreiber situation, given that Mr. Mulroney acted until very recently as an adviser to the Prime Minister, Mr. Schreiber named the Prime Minister in a court affidavit, and the government is seeking the extradition of Mr. Schreiber to Germany.  Despite recognizing his own conflict of interest, Mr. Harper continues to take part in discussions (including during several 2007 year-end interviews with the media (Transcript of relevant part of Prime Minister Stephen Harper’s interview with CBC-TV -- Transcript of Prime Minister Stephen Harper’s interview with CTV) and make decisions about the situation.

Ethics Commissioner Dawson made the ruling in response to a complaint filed by Democracy Watch on November 26, 2007 that raised serious questions about the actions of Prime Minister Stephen Harper and Justice Minister Rob Nicholson with regard to the Brian Mulroney-Karlheinz Schreiber situation being in violation of the measures in the Conflict of Interest Act (the Act) (To see Democracy Watch's complaint letter, click here).  She concluded that neither they nor any other Cabinet minister or Cabinet staff has a conflict of interest, and therefore they did not have to, and in the future do not have to, recuse themselves from making decisions concerning how the government deals with the situation (NOTE: Democracy Watch wrote back to the Ethics Commissioner on January 9, 2008 asking her to reconsider her ruling, but she refused to do so -- To see details, click here).

“The federal Ethics Commissioner’s ruling ignored the clear conflict of interest of the Conservative Cabinet when dealing with the Mulroney-Schreiber situation, a conflict even Prime Minister Harper has acknowledged, and dangerously weakened federal ethics standards by essentially making it legal for a prime minister or cabinet minister to decide whether there will be an inquiry into actions by them or their associates, and to choose their own judge, and to control legal proceedings involving people who have made allegations about them.” said Duff Conacher, Coordinator of Democracy Watch. “Democracy Watch hopes the Federal Court of Canada will overturn the Ethics Commissioner’s ruling and make it clear that federal politicians cannot make decisions in situations in which they have a clear private interest.”

Ethics Commissioner Mary Dawson’s ruling ignored clear measures in the Act, well-established legal standards, and the public interest, and reached legally incorrect conclusions thereby letting Prime Minister Harper and his Cabinet  ministers and Cabinet staff off the hook.  The following is summary of the reasons she gave for her ruling (To see the Ethics Commissioner's ruling, click here (PDF format)):

• she concluded there is no credible evidence that Prime Minister Harper has a "private interest" in the matter (even though Mr. Harper has acknowledged publicly that he does have a conflict of interest; Mr. Mulroney has acted as an adviser to him until very recently; Mr. Schreiber named him in a court affidavit concerning a meeting that did take place between Mr. Harper and Mr. Mulroney; Mr. Schreiber sent him documents about the situation and there are questions concerning how those documents were handled; the government is seeking the extradition of Mr. Schreiber to Germany and; whether or not Mr. Harper acted improperly, his personal reputation is in question and, potentially, so is his position as Prime Minister);
• she concluded that Mr. Harper had not forwarded his or Mr. Mulroney’s private interests (even though, to be in a conflict of interest under the Act, Mr. Harper only has to have the “opportunity” to forward his or someone else’s private interests); 
• she concluded there is no credible evidence that Justice Minister Nicholson has a "private interest" in the matter (even though Prime Minister Harper has acknowledged that all Cabinet ministers have a conflict of interest; he served under Mr. Mulroney, the government is seeking the extradition of Mr. Schreiber to Germany and he is the responsible minister for the extradition proceedings; Mr. Schreiber sent him documents about the situation and there are questions concerning how those documents were handled, and; whether or not Mr. Nicholson acted improperly, his personal reputation is in question and, potentially, so is his position as Justice Minister);
• she concluded there is no credible evidence that any Cabinet Minister or their staff have a "private interest" in the matter (even though Prime Minister Harper has acknowledged publicly that all Cabinet ministers and their staff have a conflict of interest, and; even though, in particular, Senator Marjorie LeBreton has acknowledged publicly that she is a close friend of Mr. Mulroney, and Minister of Foreign Affairs Peter Mackay worked for Mr. Schreiber’s company in the past and his father was a Cabinet minister in Mr. Mulroney’s government and a friend of Mr. Schreiber, and; even though they can all be dismissed without cause by Mr. Harper);
• therefore, she concluded that no one in the Conservative government needs to be investigated to determine for sure whether they violated the Conflict of Interest Act with their actions and decisions so far in dealing with the Mulroney-Schreiber situation, and;
• therefore, she concluded that everyone in the Conservative government can make or take part in any future decisions concerning the situation, including deciding whether there will be an inquiry, setting the terms of reference for the inquiry, and choosing the inquiry commissioner(s).

It should be noted that Ethics Commissioner Mary Dawson was appointed Associate Deputy Minister of Justice by then-Prime Minister Mulroney in 1988, and was selected by Prime Minister Harper and his Cabinet to be the Ethics Commissioner in spring 2007.

Democracy Watch is being represented on a pro-bono basis in the case by Yavar Hameed of the Ottawa law firm Hameed Farrokhzad St-Pierre.  The Federal Court of Appeal case file number is A-174-08 (To see Democracy Watch's court application, click here (PDF format) -- NOTE: the case file number has changed since the application was filed).

Set out below are excerpts relevant to the Mulroney-Schreiber situation from the interview CBC TV's Peter Mansbridge conducted with Prime Minister Stephen Harper in December 2007:

Peter Mansbridge: "Schreiber-Mulroney affair.  Canadians have heard now from both the two principals in this over the last couple of weeks.  They've heard a lot -- and it does raise the question of whether or not you still think, as the committee goes on, whether you still think a public inquiry is necessary as well."

Prime Minister Harper: "Well, as you, I've asked David Johnston, a very eminent and respected Canadian, he's served various Canadian governments in senior capacities, I've asked him to give us his independent advice."

Peter Mansbridge: "On whether or not there should be an inquiry?”

Prime Minister Harper: "We asked him to frame the terms of reference for a public inquiry, but my guess is that when you ask someone like David Johnston to give you his opinion, he will give you his best opinion and so we’ll see what that is.  I, frankly, have never wanted to make this call myself.  I don’t think Canadians would necessarily see me or this government as terribly objective on this matter.  We have, for example, the Government of Canada has now been, for nine years, including the two years of our government, been seeking the extradition of Karlheinz Schreiber from Canada to face serious charges in Germany.  So I’m not sure that we’re very objective or would be seen as objective.  He’ll give us his views and that’s how we will proceed.  In the meantime, Peter, this government will try to focus its activities on things that are relevant to the 21st century.”

Peter Mansbridge: "All right.  Well, let me just ask you one more.  I hear you, but if he says to you, ‘You know what, you don’t need a public inquiry’?”

Prime Minister Harper: "I think whatever advice David Johnston gives us, it’s almost a certainty that that is the advice we will follow because, from the beginning, I have not wanted to be in a position of adjudicating what should, or shouldn’t, be done with former prime ministers.  I feel extremely awkward about that.  I feel particularly awkward in the case of Mr. Mulroney.  So that’s why we have asked someone whose views I think everyone can respect to give us his best judgement.  He’s pouring through not just what we’ve heard in front of the committee, but pouring through a lot of other evidence and documents to arrive at his conclusions.”

Peter Mansbridge: "Last quick point on this.  You’ve asked your Cabinet, your government, not to have any dealings with Mr. Mulroney while this goes on.  He’s testified now under oath.  Does that ban still exist?”

Prime Minister Harper: "Well, I think it would be wise on the part of our government not to have anything that could resemble a business dealing with Mr. Mulroney before we have taken whatever final decisions we have to take as a government.  I don’t think we would want to be accused of being in a situation where Mr. Mulroney was in some ways, directly or indirectly, ultimately influencing the final conclusions we make on how to deal with this matter.”

Set out below are excerpts relevant to the Mulroney-Schreiber situation from the interview CTV's Lloyd Robertson and Robert Fife conducted with Prime Minister Stephen Harper in December 2007:

Prime Minister Harper (responding to a question by Robert Fife): " . . . But, you know, that's ultimately why I chose David Johnston, who is a very eminent Canadian, to give us his best advice.  This is not a decision, I think, the government should or wants to make itself.  So he'll give us his best advice on how we should proceed with this information."

Robert Fife: “But Prime Minister, Karlheinz Schreiber talked a good game, but when push came to push, shove, actually he wasn’t able to provide any evidence of wrongdoing by Mr. Mulroney or anybody else.  Mr. Mulroney has apologized for accepting cash for what was a private business deal.  Can you justify spending millions of dollars on a public inquiry?”

Prime Minister Harper: "Well, Mr., as I say, Professor Johnston will give us his advice on that.  I don’t think that this government is in a position to amke that judgement itself.  In terms of Mr. Schreiber, in terms of his testimony, Bob, I’m not going to comment.  As you know, Karlheinz Schreiber has been the subject of an ongoing extradition effort by the Government of Canada for the past nine year and, for legal reasons, I would not want to comment on anything he says or doesn’t say.”

Robert Fife: “Well, let me ask you about your own MPs are saying -- that you jumped the gun in pushing for a, on a public inquiry.  Was it because you were angry at Mr. Mulroney because he apparently had let it slip that he had come to Harrington Lake with his wife to see you?

Prime Minister Harper: "Well, I just have to point out that everyone has been demanding a public inquiry.  Ah, I understand that a number of people now are rethinking that.  But in any case, that mandate rests with David Johnston, and the government will do whatever he recommends.  This government isn’t going to interfere with that process.  Obviously, people would suspect our partisan motives in making any particular decision so we’ve given a well-respected and independent individual the authority to advise us on that.”

Robert Fife: “Well, I mean, even Mr. Chretien said ‘Hey, if it was me, I would have said just turn it over to the police.  I’m not going to call a public inquiry.’”

Prime Minister Harper: "Well, as I’ve said, we’ve given that to Professor Johnston.  We’ll follow his recommendations.”

Robert Fife: “OK, well I’ll ask you, Mr. Mulroney and you were fairly good friends, apparently you talked to him quite a bit.  And now he’s persona non grata.  None of your ministers and MPs are supposed to talk to him.  When is that ever going to be lifted?”

Prime Minister Harper: "Well, I think at least until we get Professor Johnston’s recommendations, and then we’ll see what the most appropriate course of action is.  I think as long as the government still has decisions to make vis a vis the matter, I think it would just wise on our part not to have any kind of business dealings, or dealings, with Mr. Mulroney, that might lead some to question whether Mr. Mulroney himself was involved in making these judgements.”

Robert Fife: “To be clear then, we may not, in the end of the day, have a public inquiry.”

Prime Minister Harper: "That will be, Professor Johnston’s been asked to provide terms of reference but, you know, he will use his best judgement and I’m interested to see what he recommends.”

Lloyd Robertson: “So he would have the right, presumably then, to say ‘Look, we’ve been all through this, let’s call it off, let’s go another route.’”

Prime Minister Harper: "Well, he, you know as I say, he’s a, he’s an eminent, highly regarded, highly qualified Canadian, and I’m sure, in the end, he will give us what he believes is his best advice.  He’s been asked to do a particular job, but I’m sure he’ll use his discretion and we’ll see what he recommends.”