Wednesday, January 9, 2008

OTTAWA - Today, Democracy Watch called on lawyers from across Canada to help it challenge the precedent-setting ruling issued Monday 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)).

Democracy Watch has written back to the Ethics Commissioner pointing out legal errors and requesting a reconsideration of her ruling, and questioning her lack of enforcement actions since she was appointed (To see letter to the Commissioner set out below, click here).  If the Ethics Commissioner does not reconsider and correct the legal errors in her ruling by issuing an amended ruling, Democracy Watch plans to challenge her ruling in court and is seeking pro bono legal assistance to do so. (NOTE: The Ethics Commissioner refused to reconsider her ruling in a January 11, 2008 letter sent to Democracy Watch -- To see the letter, click here -- and so on February 6, 2008 Democracy Watch filed a court challenge in Federal Court of the Ethics Commissioner's ruling -- To see details, click here)

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 year-end interviews with the media) and make decisions concerning the situation.

If Prime Minister Harper had not used his so-called “Federal Accountability Act” to weaken Cabinet ethics standards by removing the rule that requires ministers to avoid “apparent conflicts of interest” it would have been impossible for the Ethics Commissioner to approve of the Prime Minister’s and other ministers’ actions so far in dealing with the Mulroney-Schreiber situation.

Democracy Watch called on all members of Parliament to close this loophole by introducing and passing a bill as soon as possible adding the “apparent conflicts of interest” rule to the new Conflict of Interest Act.

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 (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.

"The federal Ethics Commissioner has 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," said Duff Conacher, Coordinator of Democracy Watch. "In making this ruling, the Ethics Commissioner has 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."

Even with the much-weakened ethics standards in the new Act, Ethics Commissioner Mary Dawson’s ruling still had to ignore well-established legal standards, and the public interest, and to reach legally incorrect conclusions, in order to let 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:

• 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 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.

Conflict of Interest and Ethics Commissioner Mary Dawson
Office of the Ethics Commissioner
Parliament of Canada
P.O. Box 16, Centre Block
22nd Floor, 66 Slater
Ottawa, Ontario
K1A 0A6
Fax: 613-995-7308

January 9, 2008

RE: Request for reconsideration of your January 7, 2008 ruling on Democracy Watch’s November 26, 2007 request concerning decisions by Prime Minister Stephen Harper and Minister of Justice and Attorney General Robert Nicholson, and for a recusal ruling for all federal Cabinet ministers, all concerning the Mulroney-Schreiber situation

Dear Ms. Dawson:

Thank you for your ruling of January 7, 2008 on Democracy Watch’s November 26, 2007 request for an investigation concerning the Prime Minister’s and Minister of Justice’s decisions, and other Cabinet ministers’ potential decisions, concerning the Brian Mulroney-Karlheinz Schreiber situation.

1. Your excessively narrow, legally incorrect definition of "private interest"
In your ruling excusing everything that the Prime Minister and Minister of Justice have done so far with regard to the situation, and allowing them to take part in and make any decisions with regard to the situation in the future, you state that no one in the Conservative government has a "private interest" in the situation as defined by the federal  Conflict of Interest Act (the "Act").

Given that you have been Conflict of Interest and Ethics Commissioner for six months, and given that (as your ruling makes clear) the definition of "private interest" is necessary in order for you to be able to enforce any of the measures in the Act, I would have thought you would have already issued a complete, legally correct and comprehensive interpretation bulletin that defined "private interest" in the Act. 

Instead, you have issued in your ruling a highly questionable, decidedly vague, and clearly legally incorrect definition of "private interest" that has no basis in the provisions of the Act or any other usual conflict of interest regime found in Canada, as follows:

(a) Your conclusion that “private interest” does not include protecting one’s position and reputation or the reputation of one’s associates
In defining "private interest" in the Act, you state that "It is a novel and interesting suggestion that 'private interest' would go so far as to include the interest of protecting one’s personal reputation and position." (page 4)

It is not in any way"novel" to suggest this -- as you must know, one of the fundamental reasons for almost all conflict of interest regimes is to ensure that a person cannot protect themselves from accountability, including protecting their job, by using their position to cover up their own wrongdoing.

You go on to suggest that, in order for a public office holder to have a “private interest” in a situation, "Another interest, whether a financial or business interest or some other interest, would be necessary along with the general desire to protect one’s personal reputation and position." (page 4)

First, nothing in the Act requires that a public office holder have a financial or business interest in order to have a private interest in a situation.  As you must know, Parliament reviewed and considered the Act, and if parliamentarians or the government had wanted to limit the definition of private interest to financial or business matters, they would have done so explicitly (as, you note, members of the House of Commons did in their Conflict of Interest Code.  To ignore this fact, as you have done, ignores fundamental rules of statutory interpretation.

Second, Cabinet ministers are paid more than members of the House of Commons, so anyone in Cabinet does have a "financial interest" in remaining in Cabinet.

Third, what exactly qualifies as "some other interest"?  As you know, one of the purposes of the Conflict of Interest Act is, under clause 3.(1)(a), to "establish clear conflict of interest and post-employment rules for public office holders".  How exactly does your ruling provide a clear rule as to what interests are included in the definition of "private interest" given that, by your ruling, the definition includes financial and business interests as well as the decidedly vague "some other interest"?

(b) Your legally incorrect claim that including protecting one’s reputation and position in the definition of “private interest” would create an “impossible” situation
Also in defining "private interest", you state that if the definition of "private interest" in the federal Conflict of Interest Act included an interest in protecting one’s personal reputation and position, it: 

"would mean that every time a public office holder exercises or performs his or her functions, he or she contravenes the Act.  This would result in an impossible conclusion as it would prevent anyone from ever fulfilling his or her functions." (page 4)

Almost everything a public office holder does in performing his or her functions (other than hiring their staff and making appointments) is either a matter of general application or affects a public office holder as one of a broad class of persons.  As a result of this massive loophole in the Act, in fact almost every time a public office holder exercises his or her functions the Conflict of Interest Act does not even apply (even if the definition of "private interest" included an interest in protecting one’s personal reputation and position).

However, the situation Democracy Watch complained about is not a matter of general application, and does not affect the public office holders involved as one of a broad class of persons.  It is a situation that is of specific application to, and affects, a small group of people, including Prime Minister Stephen Harper and his associate Mr. Mulroney, Justice Minister Robert Nicholson, and the federal Cabinet (some much more than others given their relationship with Mr. Mulroney).

As a result, if you had ruled, as Prime Minister Harper himself has acknowledged, that he and his Cabinet are in a conflict of interest because of his direct, and their indirect, association with Mr. Mulroney, it would not have any effect on almost all of the decisions and actions of any public office holder in the future (except, as in the situation Democracy Watch complained about, in situations when allegations have been made or questions raised concerning themselves or their relatives or friends).

2. Your conclusion that there is no evidence Prime Minister Stephen Harper and his friend/associate Mr. Mulroney do not have a private interest in the situation
Beyond your obvious, but legally incorrect, attempt to reduce Democracy Watch’s complaint to an absurdity by falsely claiming that including protecting one’s position and protecting one’s reputation in the definition of "private interest" is "novel" and would have impossibly broad implications, your ruling also ignores Mr. Harper’s clear private interest in the Mulroney-Schreiber situation (beyond protecting his personal reputation and position), namely that he has been named in the situation, has a relationship with Mr. Mulroney (including Mr. Mulroney advising him and meeting with him while he has been Prime Minister), and serious questions have been raised about his actions.

In fact, Mr. Harper has explicitly acknowledged his and his government’s interests in the situation in interviews he gave in December with various media outlets (Please see attached transcript of two of the interviews, and copies of two newspaper articles reporting on other interviews).  For example, he told Peter Mansbridge, anchor of CBC TV’s “The National” show:

"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."
AND
"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."

If this is true, you are unaware of evidence that anyone familiar with the Mulroney-Schreiber situation is aware of, namely that Mr. Schreiber has sworn in a court affidavit that he arranged with Mr. Mulroney to ask Mr. Harper to stop his extradition to Germany, and that Mr. Mulroney met with Mr. Harper after the date on which Mr. Schreiber alleges he made this arrangement with Mr. Mulroney.  It is true that Mr. Mulroney and Mr. Harper both claim that Mr. Schreiber’s extradition was not discussed at their meeting, but this does not mean that evidence of Mr. Schreiber’s arrangement with Mr. Mulroney does not exist.  And, in fact, Democracy Watch’s complaint letter mentioned explicitly that Mr. Mulroney had met with Mr. Harper.

Given that you claim not to be aware of this evidence, you may also not be clear on its impropriety.  As is obvious, if it is true that Mr. Mulroney asked Mr. Harper do anything with regard to the extradition of Mr. Schreiber, it is a situation either of Mr. Mulroney requesting, as a personal favour, that the Prime Minister Harper intervene on behalf of another person facing a legal proceeding, or a situation of Mr. Mulroney requesting, as a personal favour, that Prime Minister Harper do what he can to expedite the extradition of Mr. Schreiber so that he would no longer be in Canada making allegations concerning Mr. Mulroney’s actions.  Either action would, of course, amount to a violation of section 7 of the Conflict of Interest Act which prohibits giving preferential treatment to anyone.

3. Your conclusion that there is no evidence that Prime Minister Harper has given any preferential treatment to Mr. Mulroney
Mr. Schreiber’s allegation of an arrangement with Mr. Mulroney to make a request to Mr. Harper, and Mr. Harper’s subsequent granting to Mr. Mulroney the favour of a personal meeting outside of his office (at the Prime Minister’s summer residence), is also evidence you claim to be unaware of (on page 5) concerning Mr. Harper giving preferential treatment to Mr. Mulroney.

4. Your legally incorrect threshold for triggering an examination
As well, your ruling sets a legally incorrect threshold for triggering an examination.  As set out by the Federal Court in Democracy Watch v. Canada (Office of the Ethics Counsellor) (F.C.), [2004] 4 F.C.R. 83 (citing other rulings) [To see a summary of the case, click here], to form a reasonable belief that a contravention of the Act has occurred so a further examination is warranted does not require that you are presented with or become aware of clear, comprehensive, incontrovertible evidence of a contravention.  All that is required is that you are made aware of some credible evidence (which Democracy Watch’s complaint letter presented to you). 

5. Your lack of contact with Democracy Watch before issuing your ruling
In addition, issuing your ruling dismissing Democracy Watch’s complaint because of your claimed lack of evidence without ever contacting Democracy Watch, let alone without giving Democracy Watch an opportunity to provide that evidence, is a legally incorrect process (again, according to the standards set out by the Federal Court of Canada in Democracy Watch v. Canada (Attorney General) (F.C.), [2004] 4 F.C.R. 83 (citing other rulings)).  If you had followed a legally correct process, you would have raised questions with Democracy Watch about lack of evidence and provided an opportunity to respond before ruling.

6. Your failure to uphold the purpose of the Act to resolve conflicts "in the public interest"
Finally, overall you clearly ignore one of the main, stated purposes of the Conflict of Interest Act, as set out in clause 3.(1)(b), namely to "minimize the possibility of conflicts arising between the private interests and public duties of public office holders and provide for the resolution of those conflicts in the public interest should they arise". 

Do you actually believe that your ruling, which sets no limits on how Prime Minister Harper may deal with the Mulroney-Schreiber situation, minimizes the possibility of conflicts arising between Prime Minister Harper’s and his associate Mr. Mulroney’s private interests and Mr. Harper’s public duties? 

Do you actually believe that it is in the public interest to have the Prime Minister and his Cabinet involved in deciding whether there should be an inquiry under the Inquiries Act into a situation involving an adviser of the Prime Minister (Mr. Mulroney) and in which the Prime Minister has been named?

Do you actually believe that, if an inquiry is held, that it is in the public interest to have the Prime Minister and his Cabinet deciding what the terms of reference are for the inquiry and choosing the inquiry commissioner(s)?

7. Request for reconsideration and amendment of your ruling
For all of the above reasons, Democracy Watch requests that you reconsider and amend your ruling, not only to make it legally correct in terms of its interpretation and application of the provisions of the Conflict of Interest Act, but also to fulfill the statutory purposes of the Conflict of Interest Act.

I look forward to your response.

Sincerely,
Duff Conacher, Coordinator
on behalf of the Board of Directors of Democracy Watch

ATTACHMENTS:
- Transcript of relevant part of Prime Minister Stephen Harper’s interview with CBC-TV
- Transcript of Prime Minister Stephen Harper’s interview with CTV
- Ottawa Citizen article summarizing part of Prime Minister’s Stephen Harper’s interview with CanWest News Service
- Canadian Press wire article (published in the St. John’s Telegram and other newspapers) summarizing Prime Minister Stephen Harper’s year-end interviews with various media outlets

Original to follow by mail

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.”